UPDATE: FATCA: Citizenship-Based Taxation, Foreign Asset Reporting Requirements and American Citizens Abroad
By Andrew Grossman
Andrew Grossman is a retired U.S. Foreign Service Officer who served in Seoul, Abidjan, London, Tehran, Paris, Algiers, and Geneva. He holds the degrees of B.A. in Economics (Clark), LL.B. (Columbia), M.A. in L.I.S. (University College London) and of Licencié en droit européen et international, Maître & Docteur en droit (Louvain-la-Neuve) and is a member of the New York Bar. He now lives in London where he writes on private international law issues, especially in the fields of nationality and tax. Among his publications are , 5 Int'l Insolvency Rev. 1 (1996), "Nationality and the Unrecognized State", 50 Int'l & Comp. L.Q. 849 (2001), "Birthright citizenship as nationality of convenience", Proceedings, Council of Europe, Third Conference on Nationality, Strasbourg, Oct. 11-12, 2004; and "'Islamic land': Group Rights, National Identity and Law", 3 UCLA J. Islamic & Near E.L. 53 (2004). His previous work in this series is "Update: Finding the Law: the Micro-States and Small Jurisdictions of Europe" and "A Research Guide to Cases and Materials on Terrorism".
Published September/October 2023
(Previously updated in November/December 2019)
Table of Contents
- 1. Foreword
- 2. Introduction
- 3. Population of U.S. Citizens Abroad
- 4. Citizenship and Nationality
- 5. Taxation Matters
- 5.1. General
- 5.2. Extraterritorial Reach of the IRS
- 5.3. Flight, Absconding, Fugitive Status and Absence from the Jurisdiction; Commands to Repatriate Assets
- 5.4. Controlled Foreign Corporations (CFC)
- 5.5. Passive Foreign Investment Companies (PFIC)
- 5.6. Enforcement and Partial Abatement Matters
- 5.7. FATCA, Know Your Customer (KYC), Anti-Money Laundering (AML) and Foreign Financial Institutions (FFIs): Denial of Financial Services Abroad to "U.S. Persons"
- 6. Statutes of Limitation (Time Bars)
- 7. Miscellany
- 8. Bibliography (In Descending Date Order)
- 9. Earlier Articles on FATCA
- 10. Significant Recent Cases
- 11. Federal Cases Mentioning "FBAR"
- 12. Whistleblower Cases
- 13. Origins of FATCA: Banks Alleged to be Involved in Tax Evasion; Substantial Penalties
- 14. Expatriation, Conflict of Status, "Covered Expatriates", Estates and Trusts
- 15. Tax Discrimination Cases, Human Rights and Other Issues Peripheral to the FATCA Question
- 16. Implications for the Future
- 17. Conclusion
This bibliographic essay addresses the cross-border enforcement of citizenship-based taxation by the United States, in particular the requirement that "U.S. Persons" (defined below) report annually on foreign financial assets via FBAR (FinCEN Form 114). The essay collects links to documentation of known IRS prosecutions and reported or litigated civil penalties imposed against noncompliant U.S. Persons and financial institution enablers. Since about 2005 the IRS has aggressively pursued violators resident in the U.S.A., including some who came to its attention through voluntary disclosure in amnesty programs. There are other sources: "quiet disclosure" where a taxpayer submits amended or late tax returns and declarations (see Noam Noked, "The Future of Voluntary Disclosure", Tax Notes, Aug 6, 2018, p. 783.); and notoriously from the U.S. Treasury's pursuit of Swiss and other foreign banks: UBS, Credit Suisse, HSBC, Wegelin and other client lists. The "Panama Papers" (purloined documents of the Mossack Fonseca law firm), the Paradise Papers, the "LuxLeaks", and other disclosures by the International Consortium of Investigative Journalists and Wikileaks, the Birkenfeld and UBS client lists, and initiatives of the OECD and the European Union led to a web of bilateral agreements and rules, including EU Council Directive 2014/107/EU on mandatory automatic exchange of tax-relevant information. The ICIJ created a database of more than 785,000 offshore companies, foundations and trusts from the Panama Papers, the Offshore Leaks, the Bahamas Leaks and the Paradise Papers investigations. See Monty Raphael, "Who’s evading whose taxes when everywhere is offshore to everywhere else?", Offshore Investment, June 2010. Meanwhile, the U.S.A. proceeded unilaterally through FATCA and intergovernmental agreements (IGAs) with virtually all the world's countries and agreements with many banks, to secure data on the placement of funds by and for U.S. Persons. Despite its aggressive pursuit of non-reporting and tax evasion, the paucity of cases involving U.S. taxpayers living abroad, including dual nationals, suggests that diplomatic, jurisdictional and time bar constraints have left numerous noncompliant U.S. Persons overseas apparently unmolested.
In the enforcement of FBAR penalties there will be tension among the 6-year statute of limitations, absence of a target person from the U.S.A., doubt as to nationality status, and practical ability to prosecute and to collect any civil judgment by levy, voluntary surrender or otherwise. These penalties are not tax debts and so they are not collectible through reciprocal tax treaty collection provisions. Tax liability may have no effective civil time bar (fraud, non-submission of a declaration or a form, substantial misstatement) and criminal liability may be tolled, but even a sealed indictment, criminal information or civil complaint may be ineffective against target persons abroad, and revocation of passports cannot isolate a person with another nationality. (See below, Enforcement and Partial Abatement Matters.) The law providing for exit and inheritance taxation of certain present and former long-term residents, harsher than that applied to present and former U.S. citizens, may be unenforceable abroad. As cases cited below will show, the IRS may depend on income, assets or heirs located in the U.S.A. or for the commercial interests of family enterprises to plea-bargain and compromise, or on mutual tax debt collection provisions of treaties. In the end, the IRS is, and acts like, a collection agency for the U.S. Government: at a time of budget austerity it devotes attention to easy, large value and publicity-driven cases. Selective prosecution may lead to comparative injustice, but that is a weakness common to the entirety of the justice system.
All this is useful in reviewing the case documents linked below at Significant Recent Cases.
This essay attempts with links to primary and secondary materials to address the anomalies of U.S. citizenship-based worldwide taxation and the crisis that arose with a sudden strict and harsh implementation of existing and new legislation relating to foreign assets and income. There are several classes of citizens and of noncitizen taxable persons within the purview of these laws. The United States Government generally does not know who its citizens are unless they bear a Social Security number or a passport. Yet even unknowing and unwilling citizens are subject to taxation, even those who were involuntarily and sometimes retroactively, perhaps contrary to international law, attributed or restored to citizenship unilaterally by court decisions and policy changes. If later on challenged on status, noncompliant expatriates may find they have lost by lapse of time the opportunity to exclude, deduct and credit foreign elements.
Among those with restored citizenship: women who had lost citizenship prior to the Cable Act as affirmed by Mackenzie v. Hare, 239 U.S. 299 (1915) and such cases as In re Chamorra, 298 F. 669 (N.D. Cal. 1924) (refusing naturalization after citizenship deprivation) and had it reattributed (Rocha v. INS, 450 F.2d 946 (5th Cir. 1971)); persons who were deemed expatriated by relinquishment (naturalization abroad, service in foreign armed services or civil service, voting in a foreign election, prolonged residence in country of former nationality, draft-dodging, desertion) and whose relinquishment was reversed by the Supreme Court's Schneider, Afroyim and Terrazas decisions. See also Kazuyoshi Akita, "The Resumption of Citizenship Lost by Marriage to Aliens", 29 Denver L Rev. 50 (1952). They thus became potentially subject to retroactive taxation. As linked references to Revenue Rulings will show, the IRS sometimes conditioned retroactive (but not future) liability to tax to having availed oneself of an attribute of U.S. citizenship. Yet liability did not necessarily equate to IRS enforcement, or efforts at enforcement, against expatriates. It was the privatization of tax enforcement post-FATCA through foreign banks' monitoring of U.S. Persons' financial affairs that drew many expatriates and "accidental Americans" into the tax net.
Enhanced enforcement began with the Bank Secrecy Act of 1970 (Comptroller of the Currency explanation) as amended in 2004, 31 U.S. Code § 5314, § 5322(a), instituting the FBAR reporting of foreign financial accounts, and continued with the Tax Reform Act of 1986 (Passive Foreign Investment Company taxation, including, in the absence of contrary treaty provisions, foreign pensions), United States Subpart F Rules (controlled foreign corporations, Revenue Act of 1962, P.L 87-834; 76 Stat. 999). FATCA came into being with the Foreign Account Tax Compliance Act, part of the Hiring Incentives to Restore Employment (HIRE) Act of 2010, Pub. L. 111-147, 124 Stat. 71, 97-117. The Tax Cuts and Jobs Act of 2017 (TCJA) implemented the Repatriation Transition Tax, (IRS Guidance; Dept. of Treasury Inspector General Report, May 2019) aimed at large firms with large sums abroad but affecting with surprising retroactivity to 1986, and by way of tax treaty override, small, partly U.S.-owned enterprises. The transition tax's constitutionality was affirmed by the 9th Circuit (Moore v. U.S., 53 F.4th 507 (9th Cir. 2022), certiorari petition pending at time of writing). In some countries, including Canada, retained earnings may be a common repository for proprietors' pension cash to be taxed later in the other country when disbursed. Another provision taxing "Global Intangible Low-Taxed Income" (GILTI) imposed complicated calculations and additional compliance burdens beginning in 2018. As one firm of accountants noted, "It would be prudent to consider alternatives to help mitigate the impact of the new tax regime, which may include corporate restructuring, filing of annual elections or renouncing U.S. citizenship." See Jacqueline Bugnion, "A Double Taxation Nightmare Disguised as Tax Reform", Tax Notes, Apr. 29, 2019, p. 723 ("The deemed repatriation tax and the GILTI tax introduced by the TCJA add to a long list of fiscal abuses and instances of double taxation caused by the overseas extension of U.S. tax law.") (archived copy); Cadesky Tax, "Understanding the Impact of GILTI" (2019).
At the time of writing, three cases that petitioned the Supreme Court for Certiorari need to be followed: Bittner v. U.S., 598 U.S. __, 143 S.Ct. 713 (2023), decided 5-4 in the petitioner's favor but with seven justices apparently willing to accept any penalty clearly imposed by the Congress, Bedrosian v. U.S., on "willfulness" of noncompliance, and Moore v. U.S., concerned with the constitutionality of the Transition Tax (or "Repatriation Tax") imposed by the TCJA. See below for further history of these cases, which may help define the future of taxation, tax penalty imposition and tax prosecution of expatriate Americans and U.S. persons in general with passive assets abroad.
This collection of academic, government and professional sources represents an effort to show how court-ordered human-rights based decisions and legislative changes to U.S. nationality law, coupled with the American notion of nationality as "allegiance"—and accidents of history in matters of taxation and a longstanding principle of "citizenship-based taxation," have led to anomalous tax and reporting obligations for American citizens abroad. An already expansive nationality law based both on jus soli and jus sanguinis, and Supreme Court decisions presuming it to be always and everywhere a valuable right, has made its divestiture more difficult. Comparison by many in the body politic of renunciants, expatriates and "accidental Americans" to "tax dodgers" has infected the political discourse and made negotiating a solution more difficult.
Notoriety of a few cases of wealthy emigrants renouncing citizenship to avoid taxes led to the introduction of exit taxes by the Congress. As enacted, the exit tax has been capricious with anomalous results depending on status at birth, place of residence and amount and source of wealth. Subsequently, beginning with Senator Alphonse D’Amato and the Swiss Banks gold litigation and ending with settlements for Swiss and other banks that promoted secret foreign accounts to Americans resident in the United States, the Congress enacted the disclosure and reporting statutes mentioned above. One propulsion for enacting such laws was the use of presumed new revenue as an offset for new government spending and tax reductions. More recent legislation greatly strengthened enforcement of foreign account (FBAR) reporting rules under the Bank Secrecy Act of 1970, 31 U.S.C. § 5314, Internal Revenue Manual 4.26.16. By threatening foreign banks and countries with effective exclusion from U.S. financial markets (via a 30% withholding tax), enforcement was privatized. Intergovernmental Agreements (IGAs) call for foreign financial institutions and foreign tax authorities to report accounts of U.S. Persons directly to the IRS. See: UK-US Automatic Exchange of Information Agreement — Complete list of country agreements — IRS general FATCA information for governments.
Who is a U.S. Person? In general it includes all those who are U.S. citizens, whether under the XIV Amendment (born in the 50 U.S. States or D.C., except for certain offspring born to parents on the diplomatic Blue List) and "statutory" citizens born in an outlying U.S. territory or born abroad to at least one (recognized) U.S. parent who has qualifying prior residence or presence, or constructive residence, in the U.S.A., and certain adoptees. See Sessions v. Morales-Santana, 582 U.S. __, 137 S.Ct. 1678 (2017); on adoptees see Bitterman v. Ashcroft, 106 Fed.App'x. 699, 2004 WL 1790035 (10th Cir. 2004). It includes present, and certain former, permanent residents (green-card holders) and most statutory residents, subject to tax treaties and diplomatic conventions. A curious, and pertinent, possible exception relates to noncitizen "U.S. persons" who have subsequently acquired diplomatic (or sovereign) immunity; and former citizens who may or may not have had citizenship restored under Supreme Court decisions or statutory changes but who never after their expatriation availed themselves of an attribute of U.S. citizenship. Whatever the statute, the U.S. Government tends not to enforce its citizenship against such persons, or indeed any person born abroad whose U.S. citizenship derives from ancestry but whose birth has never been reported to a Government agency: thus the Cable Act restoration of citizenship per Rev. Rul. 75-357 and similar conundrums after the Afroyim (1967) and Terrazas (1980) decisions. Morales-Santana expressly claims not to be retroactive (see below).
Congress, having focused on large-scale tax avoidance by expatriation, has sought to respond to tax-motivated renunciation (excepting certain persons who are dual nationals from birth), and also against departed long-term residents. The hardly enforced Expatriation Exclusion Clause ("Reed Amendment") would bar from entry into the U.S.A. former citizens whose renunciation is tax-motivated. Going further, Senator Schumer proposed an EX-PATRIOT Act, S. 3205, "to raise taxes and impose entry bans on targeted former citizens and permanent residents", Congressional Record, May 24, 2012; see Tim Worstall, "Eduardo Saverin's Current Tax Saving: $67 Million. And It Could Be a Tax Loss in the End" Forbes, May 17, 2012; Merrill Matthews, "In Praise of Eduardo Saverin's Tax Avoidance", Forbes, May 23, 2012. That bill died in committee. It would have imposed special taxes on a subset of covered expatriates for ten years. It is mentioned here to show how the Congress targets the entirety of the U.S. expatriate population and domestic owners of foreign financial assets with penalties for relatively modest noncompliance: collateral damage of legislators' reaction to an unknown number of tax avoiders and tax evaders. "Excessive fines" defense arguments have not gained traction. The penalties are not reflective of whether there was any tax revenue loss or of the source of the overseas funds. Compare "[U.K.] Treasury proposal may fine tax evaders up to 200% of amount owed", Guardian, Aug. 24, 2016: such U.K. fines would be on unpaid tax, not penalties for non-declaration of assets, and the tax is residence-based, not citizenship-based. The U.K. does have recapture rules for taxpayers it deems to have claimed residence abroad while retaining substantive ties to the U.K.
FATCA (the Foreign Account Tax Compliance Act), a component of the HIRE Act of 2010, mandated intergovernmental agreement and enhanced enforcement of reporting obligations, of the FBAR requirement. FBAR is not part of the tax code but its enforcement has been delegated by Treasury to the IRS. Whether or not foreign financial assets give rise to income and whether or not U.S. tax is due, failure to file timely declarations to the IRS invokes penalties of the order of $10,000 per tax form per year, much more in cases of noncompliance deemed "willful" (defined and discussed in commentary and case law below). That these laws were little publicized in the past has not attenuated their enforcement; the FBAR has a statute of limitations (a nuanced view) but absconding abroad or failure to file other forms can allow indefinite civil and criminal IRS action for connected tax offenses. The fugitive disentitlement doctrine may also apply.
This essay begins with the evolution of American nationality law and then covers the tax issues as just discussed, with links to recent court judgments and law review articles that could be located in Westlaw, LEXIS, RIA Checkpoint, PACER and online up to June 2023. It is intended to set out the basic comparative-law and conflict-of-laws issues, and the U.S. notion of pre-emption by its claims to allegiance and its imposition of tax on those who fall within the scope of its definition of "U.S. Person". Exceptions relate to particular statutory and country-by-country tax-treaty derogation.
There remains a tension between U.S. claims against accidental Americans holding also a foreign nationality and residing in that other country and claims against persons in the U.S. holding unreported financial assets abroad. The law does not distinguish between the two, but practicality of enforcement, beyond the fact that foreign financial institutions (FFIs) are discouraged from doing business with such persons by costly reporting obligations or heavy fines and crippling withholding tax. The linked cases, articles and reports highlight the issue and the statistics of citizenship renunciation suggest an occasional result. Even among accidental Americans there is a division: among those who can plausibly deny U.S. status because, born abroad, their existence has never been recorded with any U.S. consular office or tax agency (and whose American parent(s)' qualifying residence or presence may be subject to doubt) and those born on continental or territorial U.S. soil, flagged for attention once that fact is known.
Note that this bibliographic essay is not presented as legal advice: it is an assembly of source materials, a unit in the GlobaLex collection of international law library bibliographic essays. In addition to background on the problems delineated by its title, it collects links to primary and secondary law and commentary, to case law, and to some degree to comparative law and conflict of laws sources. Law librarians, lawyers, students and academics will know what authority to give each of these. Only where issues have not, or not yet, been addressed, regarding chiefly accidental, reluctant or doubtful U.S. Persons abroad, does this essay set out (or speculate on) questions that taxpayers and their professional advisors—and scholars—will want to examine. Where the essay strays from the subject is for cultural context: to suggest that "citizenship" in American practice has several meanings, that judicial decisions have had unintended consequences, and that the origins of particular provisions of tax law, too, have largely affected persons beyond those originally targeted.
The research for this essay was carried out at the law libraries at Boalt Hall, the San Francisco Public Library, the Swiss Institute of Comparative Law (Lausanne) and University College London. I am grateful to those libraries and their librarians for their assistance. I have used PACER, RECAP, Lexis, Westlaw and HeinOnline; and JSTOR as to which I give a nod to the late Aaron Swartz.
3. Population of U.S. Citizens Abroad
Without any conviction or particular evidence, the U.S. Department of State had estimated the number of its citizens abroad as 9 million in 2016. In 1979 its estimate was 2.1 million, in 2004 3.2 million, in 2008 and 2010 4 million; in 2012 6.3 million and in 2013 and in 2022 6.8 million. As these numbers are generated to justify consular assets and budget, they may be self-serving; no basis for their calculation is offered. The "9 million" number disappeared from State Department communications without explanation but that number continues to be cited by writers and organizations with an interest in claiming a large number. The population of persons living abroad who appear in the context of taxation, consular assistance with passports, and social media bears no semblance to such a figure. As explained below the U.S. Government makes no effort to identify, to trace, or to obligate any person who might have a claim to U.S. citizenship but has never been documented as such and is not known to have been born on U.S. territory. Immigration officers have been reported as questioning the arrival of children brought to a port of entry as aliens by U.S. parents, leading to the child’s registration. Refusal to register carries no legal consequences; children born by medically assisted conception or adopted or born prior to the mother's marriage to an alien may or may not be U.S. citizens, depending on facts and timing. The Migration Policy Institute could only offer a range between 2.2 and 6.8 million in 2013 (Joe Costanzo, Amanda Klekowski von Koppenfels, "Counting the Uncountable: Overseas Americans"; and see Helen B. Marrow and Amanda Klekowski von Koppenfels, "Modeling American Migration Aspirations: How Capital, Race, and National Identity Shape Americans’ Ideas about Living Abroad", Int'l Migration Rev. (2018)). Unlike citizens of some other countries Americans are under no obligation to register residence or domicile with. civil authorities in their home country or abroad. Only a few countries publish population data by country of origin (Swiss data); even in the United States the issue is contentious (decennial census; community survey). Published IRS data for 2020 show the following numbers of tax returns filed from "other areas" defined as including "returns filed from Army Post Office and Fleet Post Office addresses by members of the armed forces stationed overseas; and returns filed by other U.S. citizens abroad", and in U.S. outlying territories subject mainly to "mirror taxes", as well as foreign countries (total number of returns filed from all locations in 2020 was 164,041,940):
|Number of single returns||345,780|
|Number of joint returns||225,410|
|Number of head of household returns||46,900|
The "Head of Household" concession is allowed to U.S. Persons who "paid more than half the cost of keeping up a home for the year [and a] qualifying person lived with [them] in the home for more than half the year." The qualifying person need not be a U.S. citizen: IRS Pub. 501, page 10, table 4. Infants, the low paid, and unemployed persons with foreign financial assets under $10,000 are unlikely to be represented in the above numbers; and aliens other than green-card holders unless married to a U.S. citizen filing a joint return. A U.S. taxpayer who files "married filing separately" must do so if income is $5 or more. A couple, regardless of gender, who enter into a civil partnership or a registered domestic partnership will not be deemed married for U.S. income tax purposes regardless of their treatment under other law; this offers some tax arbitrage possibilities. States that impose income tax based on domicile do not necessarily follow all federal rules nor honor U.S. tax treaty provisions.
See: Helen Burggraf, American Expat Financial News J, Aug. 10, 2019, "The ongoing mystery of the missing American expatriate numbers" Statistics of FBARs and Forms 8938 for certain years appear in the GAO document "Foreign Asset Reporting: Actions Needed to Enhance Compliance Efforts, Eliminate Overlapping Requirements, and Mitigate Burdens on U.S. Persons Abroad" (Apr. 2019). Filings prior to 2016 are discussed in IRS Press Release, "Foreign Account Filings Top 1 Million; Taxpayers Need to Know Their Filing Requirements" (Mar. 15, 2016) — Comment, Jack Townsend. "GAO Report on Foreign Asset Reporting and Related Issues" (4/4/19). In 2020 1,404,395 FBARs were filed by individuals. AARO has collected statistics going back to 2001.
4. Citizenship and Nationality
The point to retain in this context is that the State Department has a restrictive notion of "Who is a U.S. citizen" and the Internal Revenue Service an expansive one. They may be in conflict, especially as there is a rebuttable presumption of alienage as to a person born abroad vs. "Tax Code as Nationality Law". U.S. Tax law is connected not only with nationality and residence, but with immigration: Shayak Sarkar, "Tax Law's Migration", 62 B.C.L. Rev. 2209 (2021).
U.S. nationality law has changed substantially in the 20th and 21st centuries both by legislation and, especially, by U.S. Supreme Court decisions implementing evolving concepts of civil rights, gender and nonmarital equality. Foreign-born offspring of one or two U.S. citizens will, subject to options available under the Child Citizenship Act of 2000, only be citizens if the parent(s) have had qualifying residence or presence in the U.S.A. or presence abroad as government employees or military members, or dependents of either. Ashley Moore, "The Child Citizenship Act: Too Little, Too Late For Tuan Nguyen", 9 Wm. & Mary J. Women & L. 279 (2003). For acquisition of citizenship at birth outside the USA see the Immigrant Legal Resource Center Chart (2022), based on USCIS Policy Manual and on State Department and Embassy advice. For births resulting from assisted reproductive technology see 8 FAM 304.3. Amelia Shaw's 2015 article cited just below demonstrates the difficulty of proving physical presence in certain cases, most especially in cases of nonmarital children prior to the Morales-Santana SCOTUS decision. One immigration law firm's website provides a listing of the elements of proof needed to show actual residence. The presumption of alienage upon birth abroad works to the advantage of parents who do not wish to have a child's U.S. citizenship acknowledged or recorded.
Until the U.S. Supreme Court decision of June 12, 2017, nonmarital children, absent particular facts, would only be citizens if the mother had spent 365 uninterrupted days on U.S. soil at some prior period in her life. Until amended in 1986 by Pub. L. 99–653, 26 U.S.C. § 1401(a)(7) required for a parent, with an alien spouse, of children born abroad ten years' U.S. physical presence, of which five after attaining the age of 14 (earlier law had specified age 16). This meant that a married teenage parent giving birth abroad would be excluded from passing U.S. nationality to her child irrespective of time spent in the U.S. unless married to another U.S. citizen: In re S.F., 2 I. & N. Dec. 182 (1944) (“The mother was under 21 years of age when the appellant was born and therefore she had not, 'prior to the birth' resided in the United States 'at least 5 (years) after attaining the age of 16 years'."); Villegas-Sarabia v. Sessions, Case 15-60639 (5th Cir. 2017) ("Applying the rule in Morales-Santana to the instant case, the district court erred in extending the one-year exception provided in § 1409(c) to fathers"); Solis-Espinoza v. Gonzales, Case 03-70625 (9th Cir. 2005) ("Solis-Espinoza was a legitimate child, not born out of wedlock, and is thus a United States citizen"), Chavez-Garcia v. Sessions, Case 14-72172 (9th Cir. 2017) (10-year, not 365-day rule, held applicable because parental marriage held valid); Ruiz v. INS, 410 F.2d 382 (6th Cir. 1969) (impossibility for a parent under 21 years of age at the time of the child’s birth to qualify); Weedin v. Chin Bow, 274 U.S. 657 (1927) ("not a citizen, because at the time of his birth in China his father had never resided in the United States").
The most recent SCOTUS treatment of nationality is Sessions v. Morales-Santana, 582 U.S. ___ (2017) — SCOTUSblog case documents — Digest of U.S. Practice in International Law (2015), p. 1 and 8 U.S.C. § 1401(g). Numerous commentaries have been published online, and the State Department analyzed the case prior to the publication of Justice Ruth Bader Ginsburg's opinion, in its Digest of United States Practice in International Law (2016); see also Jonathan Burt, "Equal Protection and Scrutinizing Scrutiny: The Supreme Court’s Decision in Sessions v. Morales-Santana", 2018 Utah L. Rev. 787, also discussing paternal recognition and legitimation. Justice Ginsburg wrote that gender-based citizenship treatment of nonmarital children was discriminatory and (at the Government's prompting) transposed, indeed legislated (despite saying "We must therefore leave it to Congress to select, going forward, a physical-presence requirement") the marital 5-year (of which 2 years after the age of 14) residence rule prospectively. — Compare Vice Consul Amelia Shaw's 2015 article in the Foreign Service Journal, "Citizenship and Unwed Border Moms: The Misfortune of Geography" for how this changed the outcome for many; also "Mexican Children of U.S. Citizens: 'Viges Prin' and Other Tales of Challenges to Asserting Acquired U.S. Citizenship" and Rios v. Civiletti, mentioned below). The HHS Inspector General reported on birth certificate fraud in 2000 and hardships resulting from "false positives" continue to be reported in the press. Morales-Santana is the first Supreme Court treatment of nationality in recent times that is restrictive rather than expansive in requiring a longer association with the U.S.A. for the mother of a nonmarital child born abroad (but allowing discontinuities in residence). USCIS Policy Manual explanation — Compare comment by John Richardson suggesting that whatever the U.S. Government's position as to one's citizenship, at least some individuals who have never exercised an attribute of U.S. citizenship and lack its "objective characteristics" may be in a position to reject or refuse U.S. nationality. The majority view is that objective facts and not the will of an individual or his or her parent or guardian determines nationality: but facts may be difficult or impossible to prove, and there is the rebuttable presumption of alienage as to persons born abroad.
The percentage of nonmarital births in the United States has been 40.0% (2021). The rates in foreign countries are highly variable but have been increasing rapidly since the mid-1960s. The definition of marriage itself varies by jurisdiction, most interestingly in countries following legal pluralism where personal status may depend on one's religion or tribal culture: the Philippines, Israel, India, Lebanon, and most predominantly Muslim countries, much of Africa and among North American native tribes. In Canada, the Heritage Committee of Parliament addressed the issue. Civil partnerships, registered domestic partners and civil unions create anomalous situations:
- IRS, "Answers to Frequently Asked Questions for Registered Domestic Partners and Individuals in Civil Unions"
- House of Commons Briefing Paper, "The future of civil partnership" (2019)
- CAB: ”Living together and civil partnership - legal differences”
- Israel: "non-marital fertility in Israel is rising"; "fertility treatments on the rise"
- Reginald D. Smith, "Marital fertility patterns and nonmarital birth ratios: an integrated approach", 75 Genus 9 (2019)
A major point inherent in nationality cases and the tax cases that depend upon nationality is that birth in the United States will yield XIV Amendment (or for birth in unincorporated territories, under accession treaty, the Organic Act, and the Immigration and Nationality Act of 1965, statutory) U.S. citizenship from birth. Indefeasible except for renunciation and, perhaps, cession of territory, of which the only relevant instance has been the Philippines (archived copy). See Lozada Colon and Santori cases, below, relative to "Puerto Rico citizenship", and note that I.R.C. §§ 2208, 2209; Rev. Rul. 74-25; TAM 7612220070A; General Counsel Memorandum 36944, Dec. 10, 1976, and mirror tax rules create special regimes for estate tax and income tax, respectively, for Puerto Rico-born or -naturalized taxpayers.
Expatriation is a right, but the exercise of that right is conditional and sometimes impossible for economic or mental capacity reasons. (There is a degree of home rule in the rights attributable to territorial noncitizen nationals, subject to Constitutional guarantees.) But does the IRS have standing to open the question of a foreign-born person's nationality when his or her status has not previously been addressed by a competent agency: the State Department or an Immigration Court? The concept of "tax nationality" or "Tax Code as Nationality Law" applies to those who have had, and lost, U.S. citizenship or legal residence, not those as to whom underlying facts are in doubt, or not admitted.
Nationality, or a claim to it, is sometimes denied, with or without justification. Aside from accusations of forged birth certificates, there have been many cases of unrecorded (especially) pre-1945 births, and members of the cross-border Tohono O'odham Tribe have long had difficulty in proving their status. Notwithstanding Article 7 of the Convention on the Rights of the Child of 1990 (not ratified by the United States but a generally noncontentious statement of an international human rights norm, and see Gerard-René de Groot, "Children, Their Right to a Nationality and Child Statelessness", in Alice Edwards and Laura van Waas, ed., Nationality and Statelessness under International Law (2014)), there is no obstacle to a child born abroad to a U.S. citizen without past U.S. residence, or any renouncing U.S. citizen being stateless. Given certain facts, especially relating to offspring born abroad to unwed or adulterous American fathers, intercountry adoption and assisted reproduction, U.S. citizenship may be subject to effective election. There may be age limits to prove eligibility and opt in: see the Hizam judgment, below, and other paternal recognition cases. Also, Gonçalo Matias, Citizenship as a Human Right: The Fundamental Right to a Specific Citizenship (2016).
Courts or officials of one country will sometimes rule on the nationality status of purported citizens of another, occasionally without reference to or contrary to the view of that other country's consular representatives: Mahaboob Bibi v. Home Secretary,  Imm. A.R. 340 (Mauritius decolonization, attributing nationality despite failure to register a birth with the foreign consulate: Département fédéral de justice et police v. Vilchez, Trib. féd., Cour de droit public, 29 June 1979, A.T.F., 105, 1979, Ib, p. 63, Clunet, 114.1987.674 (archived copy) (Peruvian nationality not recorded with consular officials); Australian parliamentary eligibility crisis and Re Canavan,  HCA 45; also Philip Fusco (birth in Australia to American father never declared to U.S. consular officials). (Compare a Lacey Act case, U.S. v. McNab, 331 F.3d 1228 (11th Cir. 2003) — Comment, Walter James Environmental Crimes Blog, "The Lobster Conviction", Jan. 30, 2007.). Shamima Begum has been rendered stateless by Britain on the basis of a purported right to Pakistani citizenship which Pakistan refuses to concede. And see Bureau of Investigative Journalism, "'Medieval Exile': The 42 Britons Stripped of Their Citizenship", Feb. 26, 2023.
Implementation of nationality law may be capricious, and the militarization of USCIS border guards has not infrequently made it difficult for ethnic minority citizens to claim their rights: "Deported U.S. citizen finally gets passport back", N.Y. Daily News, Dec. 1, 2013 (Houston-born resident of El Salvador); Alex Perez and BJ Lutz, "American Citizen Faced Deportation: Despite ID and birth certificate, Chicago man detained for three days", NBC Chicago, May 24, 2010; Jennifer Solis, "Puerto Rican evacuees struggle to get licenses in Nevada", Nevada Current, Jul. 24, 2018 (Nevada DMV said it could not authenticate, and so would not honor for exchange, Puerto Rico driver licenses; "If we were ever approached about changing it we would do it but it would require legislation." Eugene Volokh: "a state has no constitutional obligation to recognize driver's licenses from other states"; but see Driver License Compact (unlike some other interstate compacts, the Driver License Compact does not include territories); "US citizen sues government after being detained by immigration officials for 7 months", RT News, Oct. 22, 2013 (archived copy). "Deportation Nightmare: Eduardo Caraballo, US Citizen Born In Puerto Rico, Detained As Illegal Immigrant", Huffington Post, May 25, 2010 (archived copy).
- Castelano v. Clinton (Castelano v. Rice), S.D. Tex., No. CA-M-08057 — Second Amended Class Action Complaint — Stipulation and Agreement of Settlement — U.S. Dept. of State (Passport issuance obstacles: "Plaintiffs and those they seek to represent are, or are perceived by the government to be, of Mexican descent. When they or their parents were born in states bordering Mexico (i.e., Texas, New Mexico, Arizona and California … their births were attended by midwives or other nonphysicians … in a home or local clinic.")
- Gutierrez v. Kerry, 2016 U.S. Dist. LEXIS 190865, 2016 WL 7742793 (S.D. Tex. 2016) ("The plaintiffs in these five consolidated cases filed complaints under 8 U.S.C. § 1503(a) seeking a declaration of U.S. citizenship after the U.S. Department of State ('State Department') either denied the plaintiffs application to renew his U.S. passport or revoked it.")
Nationality attributed in error may be annulled:
- Hizam v. Kerry, 747 F.3d 102 (2d Cir. 2014) ("[The State Department] will continue to support other lawful means to provide relief to Hizam, including a private bill in Congress") — Brief for Pl'f Hizam — Brief for Gov't — Reply Brief for Gov't — Gov't Memo of Law on Motion to Dismiss — Hizam Pet'n for Reh'g en banc and Digest of U.S. Practice in International Law (2014), p, 1. — David Isaacson blog — Peter van Buran blog (comparing with Yemeni cases generally, see below). As the court said, Hizam's sole source of relief would be a private Act of Congress (see GovTrack of private bills); CRS, "Procedural Analysis of Private Laws Enacted: 1986-2013" (2013); N.Y. Times, Feb. 26, 2012, "Because U.S. Erred in ’90, Bronx Resident Becomes a Man Without a Country" (archived copy). U.S. law does not encompass the concept of "possession d'état" which could resolve such problems in France and some other countries. U.K. practice: "[A]n innocent mistake would not give rise to a power to order deprivation under this provision.", and long residence may yield settlement rights.
- Abuhajeb v. Pompeo, 531 F. Supp. 3d 447 (S.D. Mass. 2021) (Meaning of "residing the United States" for purposes of the Child Citizenship Act and 8 FAM 301.10; erroneous issuance of passports)
- Saleh v. Blinken, 596 F. Supp 3d 405 (E.D. N.Y. 2022) (Another Yemen case; lack of proof of ten years’ parental residence in U.S.)
- Canada: Afzal v. Canada, 2014 FC 1028 (setting aside certificate of nationality granted in error). Revocation of nationality may result in revocation of the nationality of any children as well, depending upon relevant jus soli and long-term physical presence rules.
- Israel: Jack Khoury, "Israel Revokes Citizenship of Hundreds of Negev Bedouin, Leaving Them Stateless", Haaretz, Aug 25, 2017 (Discussion of Israeli cases involving children: "Some were citizens for 40 years, served in the army and paid their taxes, but had their status canceled with a single keystroke and no further explanation."); Times of Israel, Aug. 16, 2020.
Once legitimately acquired, key prior Supreme Court decisions have made it more difficult to lose U.S. nationality either by accident or by informal relinquishment:
- Vance v. Terrazas, 444 U.S. 252 (1980) — Comment, Lawrence Abramson, "United States Loss of Citizenship Law After Terrazas: Decisions of the Board of Appellate Review", 16 N.Y.U. J. Int'l L. & Pol. (1984).
- Afroyim v. Rusk, 387 U. S. 253 (1967) — Comment, Alan M. Gunn, "Acquisition of Foreign Citizenship the Limits of Afroyim v Rusk", 54 Corn. L. Rev. 624 (1969)
- Patrick Weil, The Sovereign Citizen: Denaturalization and the Origins of the American Republic (2013)
The case law centered on nationality sees citizenship as a precious right and takes no note of what onerous obligations for a citizen residing overseas. Subject to formal procedure, renunciation remains a right for those of full age and competence, albeit with tax and other consequences discussed extensively below. See the Meir Kahane cases, notably:
- United States v. Kahane, 527 F.2d 491 (2nd Cir. 1975)
- Compare: Heuer v. United States, 20 F.3d 424 (11th Cir. 1994) — Comment, Edward Morgan and Ofer Attias, "Rabbi Kahane, International Law, and the Courts: Democracy Stands on Its Head", 4 Temp. Int'l & Comp. L.J. 185 (1990);
- Similarly, Matter of Kekich, 19 I&N Dec. 198 (1984) (relinquishments of U.S. citizenship upon naturalization in Venezuela)
- Alexander J. Segal, "Denaturalization", Casetext, Jul. 19, 2016
- Re SFC (Ret.) Charles J. O'Fearna, GAO Office of General Counsel, B-212481, Feb 2, 1984 ("A retired member of the Armed Forces who becomes a citizen of a foreign country by naturalization and who voluntarily renounces United States citizenship loses the right to retired pay") (archived copy)
In its attribution to persons born abroad citizenship may be inchoate: unrecognized and its obligations unenforced. In cases of doubt where the offspring of a citizen is unable or unwilling to prove facts (genetic or gestational relationship; prior parental U.S. residence) that would determine nationality, a person may be admissible to the United States temporarily as a presumed alien: 9 FAM 202.1-2 and 7 FAM 085. Note that the texts of State Department Instruction 9 FAM 202.1-2 and 9 FAM 301.3-3 were revised as of April 30, 2019, leaving 7 FAM 085 unchanged at least for the time being. Compare the prior version of 9 FAM 202.1-2: the new version requires greater confidence on the part of the consular officer regarding a visa applicant's status: "You may not issue a visa to an individual unless you are satisfied that the applicant is an alien." As to the rebuttable presumption of alienage as to persons born outside the geographic United States and territories:
- Rios v. Civiletti, 571 F. Supp. 218 (D. P.R. 1983) (father, U.S. Army deserter, recorded birth in Mexico using fictitious name)
- Corona-Palomera v. INS, 661 F.2d 814, 818 (9th Cir.1981) (Mexican birth certificates in evidence)
- Matter of Leyva, 16 I. & N. Dec. 118, 119 (BIA 1977) (birth in Mexico)
Developments in assisted reproductive technology led to new interpretation of the Immigration and Nationality Act by the Department of State as to visas and nationality: Digest of United States Practice in International Law (2014), p. 18 (Retroactive, published Jan. 31, 2014); Michele Chabin, "Policy shift eases citizenship for foreign-born kids of American moms", USA Today, Feb. 27, 2014; Ellen Trachman, "The State Department Goes For Broke in Its Fight Against … Babies Of LGBTQ Parents", Above the Law, May 22, 2019; Kristine S. Knaplund, "Baby Without a Country: Determining Citizenship for Assisted Reproduction Children Born Overseas", 2013 Denver Univ. L. Rev.; Allison Kaplan Sommer, "IVF Babies Denied U.S. Citizenship", Forward, Mar. 21, 2012; The gestational option has been seen as discriminatory against LGBTQ men: Sam Levin, "One ruled a US citizen, the other not: gay couple's twins face unusual battle", Guardian, Jan. 24, 2018.
The attribution of nationality later than at birth (and other than as a matter of law when previously unknown facts come to light (archived copy)) normally requires consent. This is an international law argument: that consent of the individual (or guardian) is required at a time other than birth, adoption, state succession (see also Ineta Ziemele, "State Succession and Issues of Nationality and Statelessness", in Alice Edwards and Laura van Waas, ed., Nationality and Statelessness under International Law (2014)) or (now rarely) marriage (Airola case, below). Most international-law complaints relate to denial, rather than attribution, of nationality, as in "Ex Post Facto Problems of the Czech Citizenship Law", and many relate to ethnicity criteria for the attribution of nationality as in the Baltic country cases. On the matter of automatic naturalization through marriage and its exorbitant attribution generally, see Laura Ellen van Waas, Nationality Matters: Statelessness under International Law (2008); Alfred M. Boll, Multiple Nationality and International Law (2007), United Nations, Women, Nationality and Citizenship (2003), Michel Verwilghen, Conflits de nationalités: Plurinationalité et apatridie (1999); International Law Commission, Draft Articles on Nationality of Natural Persons in Relation to the Succession of States with Commentaries (1999) and International Law Commission reports drafted under the direction of Special Rapporteur Manley O. Hudson in the mid-20th Century; Airola v. Commission, Case 21.74,  ECR 221 (Belgian staff member of the European Communities automatically attributed Italian citizenship upon her marriage to an Italian; held disregarded for purposes of expatriation allowance while posted to Italy).
The result is that it is questionable practice to "restore" citizenship retroactively without actual or implied consent as by availing oneself of an attribute of that citizenship or by continued residence in the relevant territory. Right of option and ethnic identity have been two elements of many treaties and statutes (see Treaty of Paris 1898, just below). China (1909) and Israel (1951) existed for some time without any nationality law at all, yet in each case the State had no doubt as to who belonged to it. The IRS, as of 1975, did not agree that involuntary restoration of citizenship was ineffective for tax purposes: Rev. Rul. 75-357 (regarding estate taxation of persons expatriated under the Expatriation Act of 1907); similarly Rev. Rul 92-109, 1992-C.B. 3 (citizenship restored retroactively by the Terrazas and Afroyim SCOTUS judgments). In effect the Department of State invalidated prior documentation of loss of nationality. No case has come to light to date where an interested party (including after-born offspring, born abroad to such a former U.S. citizen) has been made unwillingly to adapt to such restoration and consequent assessment of U.S. income tax or subjection to estate and gift tax despite years of living abroad as a nonresident alien. But see Dept. of the Treasury Office of Tax Policy, Income Tax Compliance by U.S. citizens and U.S. Lawful Permanent Residents Residing Outside the United States and Related Issues (May 1998), pp. 38-42, "Relief for 'Unknowing' or 'Restored' Citizens". ("Equity may argue for granting some unknowing and restored U.S. citizens an exemption from U.S. taxation. An individual claiming the benefit of this exemption should bear the burden of proving that he or she had no knowledge of his or her U.S. citizenship during the period at issue. [footnote omitted] Because of the possibility of abuse, the criteria for lacking knowledge of U.S. citizenship should be strictly construed.")
Neither the Department of State nor the IRS can realistically force administrative or judicial adjudication of cases in which a nonresident foreign-born person has a potential claim to U.S. citizenship by reason of ancestry or of birth in U.S. air or maritime space. Relevant facts as to residence, presence or "genetic and/or gestational and legal" relationship, indeed access to DNA evidence, may be unprovable after many years and without the cooperation of an individual or parents. The conventional manner of ascertaining citizenship in doubtful cases abroad is application for a U.S. passport, or for infants application for a Consular Report of Birth Abroad of a Citizen of the United States of America. One can assume that the IRS has no standing to institute an investigation of citizenship against a person abroad who has never claimed citizenship or announced facts that would attribute it. On this subject see Wikipedia on "Accidental American" and Chantal Panozzo, "When American Expats Don’t Want Their Kids to Have U.S. Citizenship", Wall St. J. Expat Blog, Feb. 18, 2015. Children born abroad to U.S. citizen parent(s) and whose birth was never registered with a consular office can, with proper evidence of parental status and U.S. residence or presence, apply for a U.S. passport or, within the USA, a certificate of citizenship. Such persons may want first to arrange their financial and tax affairs, just as any intending immigrant would, before taking such steps: Practising Law Institute, Pre-Immigration Tax Planning; Patrick W. Martin, Jon Schimmer, "The Great Myth in Pre-Immigration Tax Planning – Why Section 679(A)(4) Does Not Apply to Subtitle B (U.S. Estate, Gift and Generation Skipping Transfer Taxes)", Calif. Tax Lawyer (2005).
Note the IRS effort to argue expansively in Rev. Rul. 75-357, PLR 8138071: "The Supreme Court's decision in Afroyim has the legal effect of voiding section 401(e) of the 1940 Act (and its successor, section 349(a)(5) of the 1952 Act, 8 U.S.C. section 1481(a)(5) (1970)) and the Rocha decision has the same effect with respect to section 3 of the 1907 Act. Since the decisions operate both retroactively and prospectively, individuals affected thereby are and have been United States citizens since birth or naturalized in the absence of facts establishing that such individuals are not United States citizens by virtue of other provisions of law." Taken literally this IRS postulation could affect many foreign-born children of former U.S. citizens who have pursued their lives from birth as nonresident aliens. One could go further in terms of exorbitance: what force shall be given to denaturalization effected by the Bancroft Conventions, the last of which (Bulgaria, Nov. 23, 1923) was denounced by the United States by 2017; its last appearance in the historical Treaties in Force database is as of Jan. 1, 2013. And see U.S. v. Matheson (Estate of Burns), 400 F.Supp. 1241 (S.D. N.Y. 1975), aff'd, 532 F.2d 809 (2nd Cir. 1976) (expatriation, reintegration: "Mrs. Burns and Matheson continually believed and represented that she was a citizen of the United States"; income and estate taxes); King v. Rogers, 463 F.2d 1168 (9th Cir. 1972) ("After 1954, King did not consider himself to be a United States Citizen. In 1954 he had the specific subjective intent to and did renounce his United States citizenship."); FN 1, "Compare Savorgnan v. United States, 338 U.S. 491 (1950) with Afroyim v. Rusk, 387 U.S. 253 (1967); Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Nishikawa v. Dulles, 356 U.S. 129 (1958); and Trop v. Dulles, 356 U.S. 86 (1958). Cf. Rogers v. Bellei, 401 U.S. 815 (1971)."
Rev. Rul. 92-109, 1992-2 C.B. 3: "Regarding the taxation of former and reinstated U.S. citizens, it was determined that individuals who lost their U.S. citizenship and then had it retroactively restored before January 1, 1993, will not be held liable for federal income or gift taxes as U.S. citizens between the date they lost their citizenship and the beginning of the taxable year in which the citizenship was restored." This is extrastatutory, but it implies forced reintegration of those expatriated under former law; Jacquin D. Bierman, Steven L. Severin, "Ruling Provides Filing Relief For Expatriates", 78 J. Tax'n 138 (1993). And see: U.S. Treasury, "Income Tax Compliance by U.S. Citizens and U.S. Lawful Permanent Residents Residing Outside the United States and Related Issues" (1998), pp. 38-39. And see U.S. v. Lucienne D'hotelle de Benitez Rexach, 558 F.2d 37 (1st Cir. 1977) (Loss of U.S. nationality by return to country of origin (France); Estate held liable for income tax on community property for the years that decedent "was unaware that she had been automatically denaturalized" and claimed benefits of U.S. citizenship, including passports); Furstenberg v C.I.R., 83 T.C. 755 (1984) (taxpayer liable for tax on constructive receipt of capital gains and dividends prior to her expatriation).
Revenue Rulings are an official interpretation of the Internal Revenue Code but may not have precedential value to the extent that they refer to a specific set of facts; they are not binding on courts. If taxation, even only prospectively, were sought to be enforced against nonresident former citizens who have established commitments and, indeed, who might thereby forfeit citizenship of another country that disallows dual nationality, the application of draconian penalties and taxation under Passive Foreign Investment Company (PFIC) and foreign-trust rules could cause conflict and impoverishment. (Archived former Dutch Foreign Ministry list of countries which do not have provision for renunciation of their citizenship.) There are exceptions to PFIC rules only in respect of pension funds in those few countries where U.S. tax treaties so provide, notably Canada and the United Kingdom, but with reservations.
As to transfers of territory, Art. VI of the 1970 Treaty to Resolve Pending Boundary Differences and Maintain the Rio Grande and Colorado River as the International Boundary between the United States and Mexico declares:
"The relocation of the international boundary and the transfer of portions of territory or any other provision of this Treaty shall not affect in any way:
(1) The legal status with respect to citizenship laws, of those persons who are present or former residents of the portions of territory transferred."
It remains to be seen what provision would be made for persons born or naturalized in Puerto Rico in the event the territory became independent. Note that Article IX of the 1898 Treaty of Paris between the United States and Spain provided, "In case [Spanish subjects] remain in the territory they may preserve their allegiance to the Crown of Spain by making, before a court of record, within a year from the date of the exchange of ratifications of this treaty, a declaration of their decision to preserve such allegiance; in default of which declaration they shall be held to have renounced it and to have adopted the nationality of the territory in which they may reside."
- Facsimiles of Declarations of Persons Retaining Spanish Citizenship
- Lozada Colon v. Dep't of State, 2 F.Supp.2d 43 (1998), aff'd 170 F.3d 191 (D.C. Cir. 1999) — Gov't Brief ("Plaintiff, a United States Citizen born in Puerto Rico, seeks to renounce his United States citizenship and yet still reside and remain in Puerto Rico as a Puerto Rican national despite the fact that Puerto Rico is a territory of the United States.") — Comment, Katharine Nylund, "The Indignity of a False Citizenship: Self-Induced Statelessness in Puerto Rico",  Tilburg L. Rev. 223 — Comment, José A. Cabranes, "Citizenship and the American Empire: Notes on the Legislative History of the United States Citizenship of Puerto Ricans", 127 U. Pa. L. Rev. 391 (1978)
- Santori v. U.S., 30 F.3d 126 (1st Cir. 1994) (seeking "a declaratory judgment that he has the right to renounce his United States citizenship before any federal court and become a non-citizen national of the United States and a citizen only of Puerto Rico").
There is a distinction between the status of Puerto Ricans (and Guamanians) and that of Filipinos, all three populations inherited from Spain in 1898: The Tydings-McDuffie Act (1934) anticipated independence for the Philippines and classified Filipinos as alien protégés: Dawn B. Mabalon, "The Significance of 1946 for Filipina/o Americans". They were noncitizen nationals:
- Licudine v. Winter, 603 F. Supp. 2d 129 (2009) — Complaint — Motion to Proceed in Forma Pauperis — Motion to Appoint Counsel — Gov't Motion to Dismiss — Opinion (Court version).
- The fragility of territorial status is highlighted in Tuaua v. United States, 788 F.3d 300 (2015), Cert. denied 136 S. Ct. 2461 (2016) — Note, Benjamin Wallace Mendelson, "Courts Have Gone off the Map: The Geographic Scope of the Citizenship Clause", 95 Tex. L. Rev. 873 (2017) — SCOTUSblog (with downloadable case documents).
- Lana Birbrair, "The Insular Cases: Constitutional experts assess the status of territories acquired in the Spanish–American War", Harvard Law Today, Mar. 18, 2014
- Juan R. Torruella, "Ruling America's Colonies: The Insular Cases", 32 Yale L. & Pol'y Rev. (2013)
- Neil Weare, "Why the Insular Cases Must Become the Next Plessy", Harvard Law Review Blog, Mar. 28, 2018
We can draw the conclusion from the above that while the status of most individuals born in the Continental United States subject to its sovereign jurisdiction and therefore citizens by way of the XIV Amendment of the U.S. Constitution is clear, and the status of those born in U.S. territories is established by statute, U.S. citizenship of persons born abroad, and those as to whom birth within U.S. territory is in question, is dependent upon administrative or judicial acknowledgment of facts. Thus, for example, "Birth documents from border lay midwives draw scrutiny: U.S. challenging some passport applicants born on border", Houston Chronicle, Feb. 14, 2009 (archived copy); "Yemeni-Americans, Thrust Into Limbo, Say U.S. Embassy Unfairly Revokes Passports", N.Y. Times, May 27, 2015 (archived copy) and Ramzi Kassem, "Passport Revocation As Proxy Denaturalization: Examining the Yemen Cases", 82 Ford. L. Rev. 2099 (2014). — State Dept. précis of U.S. Citizenship Laws and Policy — Bibliography of treatises and other materials on U.S. immigration and nationality law.
On renunciation, revocation or denial of U.S. citizenship:
- Hoda Muthana v. Pompeo, D. D.C. Case 19-cv-445 — Docket — Complaint — Attachment to Complaint: State Dep't Letter — Pl'f Motion to Expedite — Pl'f Brief — Amicus Brief for Pl'f — Gov't brief — Attachment to Gov't Brief (Letter from USUN) ("Mr. Muthana and his family enjoyed diplomatic agent level immunity until February 6, 1995.") — Order Denying Expedited Consideration — State Dep't Motion to Dismiss, with Attachments ("The fact that Mr. Muthana enjoyed privileges and immunities in the period between September 1994 (the date he was actually terminated from the Yemeni mission according to the Notice provided to us by the United Nations Office of Protocol) and February 6, 1995 (the date USUN Host Country Affairs received official notice of his termination from the UN Office of Protocol), is evidenced by the fact that we added the birth of his daughter Hoda to the KARDEX after her birth in October 1994.") — State Dept. statement ("Ms. Hoda Muthana is not a U.S. citizen and will not be admitted into the United States.") — Charlie Savage, "Judge Declines to Speed Up Case of Alabama Woman Who Joined ISIS", N.Y. Times, Feb. 19, 2019 (Archived copy) — Vienna Convention on Diplomatic Relations (1961), Art. 39(2) ("When the functions of a person enjoying privileges and immunities have come to an end, such privileges and immunities shall normally cease at the moment when he leaves the country, or on expiry of a reasonable period in which to do so, but shall subsist until that time…") — Comment, Ernesto Hernández-López, "Detaining ISIS: Habeas and the Phantom Menace", 71 Okla. L. Rev. 1109 (2019) — Comment, Krishnadev Calamur, "This ISIS Citizenship Case Could Set a Terrifying Precedent", The Atlantic, Feb. 26, 2019. — "Ahmed Ali Muthana left his position as a Yemeni diplomat to the United Nations after the country descended into a civil war and was asked to surrender his diplomatic ID in June of 1994. Hoda was born in Hoover, Alabama in October of 1994." — Igor Derysh, "Ahmed Ali Muthana, Hoda Muthana’s Dad: 5 Fast Facts You Need to Know", Heavy.com, Feb. 22, 2019 (archived copy).)
- Andrea Rodriguez, Cuban spy renouncing US citizenship to stay home, Washington Examiner, May 6, 2013 ("A Cuban spy who spent 13 years in a U.S. prison renounced his American citizenship Monday, part of a deal that allows him to avoid returning to the United States to serve out the remainder of his probation.")
- Yaser Esam Hamdi v. Rumsfeld, case 02-6895 (4th Cir. 2002) — Abigail d. Lauer, "The Easy Way Out? The Yaser Hamdi Release Agreement and the United States' Treatment of the Citizen Enemy Combatant Dilemma", 91 Corn. L. Rev. 927 (2006). (Compare Kawakita v. U.S., 343 U.S. 717 (1952) and subsequent commutation of sentence, expatriation and banishment by order of Pres. Eisenhower.)
- Juliet Labog-Javellana-Director, Philippine Daily Inquirer, February 27, 2017, "Yasay: American, Filipino or stateless?"
- Jorunn Brandvoll, "Deprivation of Nationality: Limitations on Rendering Persons Stateless Under International Law", in Alice Edwards and Laura van Waas, ed., Nationality and Statelessness in International Law (2014)
- R (on the application of Hysaj) v. Home Secretary,  UKSC 82 (The issue is whether the misrepresentations made by the appellants in their applications for United Kingdom citizenship made the grant of that citizenship a nullity, not just rendering them liable to be deprived of that citizenship under sections 40 and 40A of the British Nationality Act 1981) — Comment, United Kingdom Law Blog, "Law Corrected on British Citizenship and Identity Fraud"
- Jean-Cosme Delaloye, "Un résident suisse condamné aux USA pour évasion fiscale" ("A Swiss resident convicted in the USA for tax evasion"), Bilan, May 4, 2016 (via Google Translate) (Albert Cambata, resident in Switzerland since 2007, renounced his U.S. citizenship in Bratislava in 2012; he obtained economic citizenship (a "golden passport") of St. Kitts, pleaded guilty to tax evasion in Federal court in the Eastern District of Virginia, received a suspended sentence of one year and a fine. (See Cambata case below) — Albert Kershi Cambata and Celia Joan Cambata renunciation of U.S. citizenship (Federal Register, Aug. 9, 2013)
- Diplopundit: "With Final Rule on Consular Fees, State Dept. Addresses Comments on Renunciation of U.S. Citizenship", Aug. 31, 2015
- Linda K. Kerber, "Toward a History of Statelessness in America", 57 Am. Q. 727 (2005)
Loss of nationality or green-card status since 2008 may give rise to indefinite tax obligations in the absence of particular administrative demarches having been effected: and this is true whether the individual has any right to enter or work in the United States, even in deportation cases. The U.S. Congress has overridden tax treaties: the Alternative Minimum Tax and the Net Investment Income ("Obamacare") 3.8% surtax on unearned income: Haver v. Comm'r, 444 F.3d 656 (D.C. Cir. 2006) (AMT). FATCA may be no less a tax treaty override. (Cases and materials on statutory override are discussed and linked below.)
- See generally U.S. Treasury, "Income Tax Compliance by U.S. Citizens and U.S. Lawful Permanent Residents Residing Outside the United States and Related Issues" (1998)
- Republicans Overseas, “The Unintended Consequences of the Foreign Account Tax Compliance Act”
- Democrats Abroad, “FBAR/FATCA Task Force Report” and subsequent updates.
- Association of Americans Resident Overseas, “Access to banking and financial services”.
The critical issue is this: because U.S. nationality law and the statutory and judicial rules on loss, renunciation and relinquishment of that nationality have changed dramatically during the 20th Century and through to the present it requires close analysis of facts and timing to determine whether an expatriate lost or relinquished, retained or regained U.S. citizenship status will directly affect tax and reporting obligations of nonresidents. The IRS and the State Department may not agree on the issue of involuntary restoration or retention, and under current law citizenship-based taxation may apply despite previous loss of nationality or residence status and even in the case of a person with no right of entry or residence in the U.S.A. At least since 2004 there is dissonance (archived copy) between loss of citizenship for nationality purposes (including right of entry and abode) and loss for tax purposes, and this may impact persons whose prior loss of citizenship as a matter of law did not come to the attention of the U.S. Government. Compare prior law as applied in Marks v. Esperdy, 315 F.2d 673 (1963) (loss of U.S. nationality for having served in the Cuban Revolutionary Army deemed effective, ostensibly for all purposes, by performance of the expatriating act).
John Richardson, U.S. and Canadian lawyer, puts it this way: "Prior to June 3, 2004, U.S. citizenship for nationality purposes determined U.S. citizenship for tax purposes. If one was not a citizen for 'nationality purposes' one was not a 'citizen for tax purposes.’ Beginning with June 3, 2004 it became possible to relinquish U.S citizenship for nationality purposes, but continue to be subject to U.S. taxation unless various 'notice requirements' (Form 8854 between 2004 and 2008 and CLN from 2008 on) were met. This resulted in indefinite taxation until those notice requirements were met. It is (I think) similar to the requirement for Green Card holders that the Green Card be formally surrendered (I-407) for example, or the requirements in Internal Revenue Code Sec. 7701(b) be met." ("Renunciation is one form of relinquishment – It’s not the form of relinquishment, but the time of relinquishment" and "Q. Is a CLN necessary to relinquish US citizenship for tax purposes? A. It depends on the date of relinquishment") See also Rolf E. Kroll, Internal Revenue Code Section 7701(b): A More Certain Definition of Resident, 3 Dickinson J. Int'l L. 233 (1985)
Beyond that, there are categories of persons, including noncitizen nationals of American Samoa and of Swains island, First Canadians with Jay Treaty rights, citizens of Micronesia, Marshall Islands and Palau (per the Compact of Free Association) and certain noncitizen military members who may have right of residence giving rise to tax liability without necessarily leaving a clear paper trail and no, or attenuated, U.S. tax obligations when abroad. The latter group is currently in a tenuous situation (archived copy); some military veterans have been deported. See the Harvard Law Review series of articles of 2017 and Matter of Ah San, Board of Immigration Appeals Case A-20968308 (1975) ("The applicant for admission is a native and citizen of Western Samoa. She is the child of a noncitizen national born in American Samoa."). See Tuaua v. United States, 788 F.3d 300 (D.C. Cir. 2015), Cert. denied 136 S. Ct. 2461 (2016) ("To date, Congress has not seen fit to bestow birthright citizenship upon American Samoa, and in accordance with the law, this Court must and will respect that choice.").
- Ross Dardani, "Citizenship in Empire: The Legal History of U.S. Citizenship in American Samoa, 1899-1960", 60 Am. J. Legal Hist. 311 (2020)
- Fitisemanu v. U.S., 1 F.4th 862 (10th Cir. 2021), 20 F.4th 1325 (10th Cir 2021), Cert. denied, 143 S.Ct. 362 (2022) — Brief of Gov't of American Samoa — Brief of Samoan Federation of America
- Jason Buhi. "Citizenship, Assimilation, and the Insular Cases: Reversing the Tide of Cultural Protectionism at American Samoa", 53 Seton Hall L. Rev. 779 (2023)
- Edward J. Michal, "American Samoa or Eastern Samoa? The Potential for American Samoa to Become Freely Associated with the United States", 4 Contemporary Pacific 137 (1991)
Even given the standard "saving clause" of U.S. tax treaties (Art. 1(4) of the U.S. Model Income Tax Convention) and notwithstanding the international-law rule that it is for each State to determine who are its nationals, it is not inevitable that foreign states will recognize for all purposes another State's claim to allegiance, particularly as to a person who is also a national of the first State or of a State included in a free travel area. See Micheletti v. Delegación del Gobierno en Cantabria,  ECR I-04239 (European Union citizenship of an Argentine-Italian migrant could not be ignored by Spanish authorities). Already, in terms of laws prohibiting dual nationality, some states have chosen to disregard nationality links that a foreign country cannot or will not abrogate ("dual nationals are somehow suspect"). Dual nationality was an issue before the Iran-U.S. Claims Tribunal, as before earlier postwar claims commissions. Nationality of an unrecognized State may be acknowledged for some purposes and not others. If dual citizenship is a human right, what does that say about the right to renounce? Peter J. Spiro, Dual citizenship as human right, 8 Int'l J. Const'l L. 111 (2010); Peter Spiro, At Home in Two Countries: The Past and Future of Dual Citizenship (Citizenship and Migration in the Americas) (2016). If the costs (consular fees and exit taxes) of renunciation are exorbitant or if renunciation is dependent upon performance of military service would another State be required to recognize its retention?
While the principle of nonrecognition of a nationality absent genuine and substantial ties with the granting State comes from cases such as Nottebohm and Schwartzkopf v. Uhl that are of limited usefulness in the more recent context of common multiple nationality, it makes sense that "international law should candidly analyze and regulate nationality in terms of its functions so as to better effectuate the diverse roles that nationality serves today": R.D. Sloane, "Breaking the Genuine Link: The Contemporary Legal Regulation of Nationality", 50 Harv. Int'l L J. 1 (2009). How far may a State go in abusive attribution of obligations of allegiance on someone whose connection with that State is accidental and trivial? And how far may a State go in collateral enforcement, punishing private-sector entities that do not pursue aggressive enforcement on the State's behalf?
- Josef L. Kunz, "The Nottebohm Judgment (Second Phase)", 54 A.J.I.L. 536 (1960)
- Audrey Macklin, "Is It Time to Retire Nottebohm?", 111 A.J.I.L. 491 (2018)
- Office of the High Commissioner for Human Rights, "International standards relating to nationality and statelessness: OHCHR and the right to a nationality"
- Barbara von Rütte, The Human Right to Citizenship: Situating the Right to Citizenship within International and Regional Human Rights Law (Brill, 2022)
- Robert D. Sloane, "Breaking the Genuine Link: The Contemporary International Legal Regulation of Nationality", 50 Harv. Int'l L. J. 1 (2009
- Council of Europe, Committee of Experts on Nationality, Report on Multiple Nationality (2000)
- Kim Rubenstein, "International Citizenship: The Future of Nationality in a Globalized World", 7 Ind. J. Global Legal Stud. 519 (2000)
- Ian Brownlie, "The Relations of Nationality in Public International Law", 39 Brit. Y.B. Int'l L. 284 (1963)
A proliferation of "economic citizenships" (citizenship by investment) has highlighted the risk of fraude á la loi.
- OECD, Residence/Citizenship by investment schemes (Risks to Common Reporting Standard (CRS))
- World Population Review, "Easiest Countries to Get Citizenship" (2023)
- Jelena Džankić, The Global Market for Investor Citizenship (2019)
- "What price a passport? Selling citizenship and residence is fine, as long as ne'er-do-wells are weeded out", The Economist, Sept. 29, 2018
- Alison Millington, "17 countries where money can buy you a second passport or 'elite residency'", Business Insider, Jul. 3, 2017 (Archived copy)
- Jelena Džankić, "Immigrant investor programmes in the European Union (EU)" (2017?) (Another copy)
- Vikram Mansharamani, "The $2 Billion Market for Passports", Fortune, Apr. 2, 2016 (Archived copy)
- Judith Gold and Ahmed El-Ashram, "A Passport of Convenience", IMF Finance & Development, Dec. 2015
- Madeleine Sumption and Kate Hooper, "Selling Visas and Citizenship: Policy Questions from the Global Boom in Investor Immigration", Migration Policy Institute, Oct. 2014
- Jelena Džankić, "Citizenship with a price tag: the law and ethics of investor citizenship programmes", 65 N. Ireland L. Q. 387 (2014)
- Secondary boycotts: Nancy Turck, "The Middle East: The Arab Boycott of Israel", Foreign Affairs, April 1977 and Roger Alford, ed, "The Death of the Secondary Boycott Against Israel", Kluwer Arbitration Blog, Mar 25, 2010
- Jamie L. Boucher Eytan J. Fisch Khalil N. Maalouf Joseph M. Sandman, "Key Developments in US Sanctions", Skadden's 2019 Insights, Jan. 17, 2019 (Archived copy)
- Cedric Ryngaert, "Extraterritorial Export Controls (Secondary Boycotts)", 7 Chinese J. Int'l L. 625 (2008)
Foreign Financial Institutions (FFIs) have been cued to demand a Certificate of Loss of Nationality (CLN) as means of proving loss of U.S. citizenship, but such documents (now form DS-4083, formerly form FS-348, per 7 FAM 1220) were not required for any obvious purpose prior to June 16, 2008 (26 U.S.C. §877(g)(4)). Applying for a CLN could, under certain circumstances, invoke restoration of previously lost citizenship, only for that citizenship to be renounced or relinquished once more. This could have adverse tax consequences: John Richardson has written extensively on this subject. Philip Hodgen, Pasadena, CA and Golding & Golding, Irvine CA are among specialist international tax lawyers with useful Websites. "Tax-Expatriation" is a website maintained by Patrick W. Martin.
Expatriation, while a constitutional entitlement from the time of Thomas Jefferson, can come at great cost, quite beyond the nonrefundable $2,350 consular fee currently charged. See Virginia La Torre Jeker, "Unprecedented Fee for CLNs Documenting Loss of US Citizenship by 'Relinquishment'", World Tax, Apr. 7, 2016 and Robert W. Wood, "Fee To Renounce Citizenship To Drop, Reversing 422% Hike", Forbes, Jan 12, 2023. As of the time of writing, the renunciation fee remains at $2,350. American citizens not specifically exempted either by statute or in some way by sovereign, diplomatic or quasi-diplomatic immunity attaching immediately upon loss of U.S. citizenship, and who possess assets beyond a stated amount (see the IRS explanation) are liable to pay the exit tax. Thus: capital gains tax on deemed sale of assets including assets (such as pensions) to which they do not have access, and notwithstanding the rights of others such as family members under foreign law. See: Robert Wood, "Renounce U.S., Here's How IRS Computes 'Exit Tax'", Forbes, Feb. 27, 2017. Certain persons who were dual nationals at birth and who reside in their other country of nationality may, under conditions, avoid the most onerous tax consequences of expatriation. Thus: Phil Hodgen, "The Dual Citizen Exception to Covered Expatriate Status". A U.S. citizen accredited by a foreign country to the United Nations has no personal immunity (U.S. citizens cannot receive State Department accreditation to a diplomatic mission in Washington unless they renounce citizenship):
- U.S. v. Francis Lorenzo, S.D. N.Y., Case 15-706 — Docket — DOJ Documents — Superseding Criminal Information —Gov't Memorandum in Opposition to Def't Motion to Dismiss on Grounds of Diplomatic Immunity, with attachments, Jan. 5, 2016 — Transcript, Guilty Plea Entry, Mar. 28, 2016 — Letter Motion Requesting Order Unsealing Grand Jury Material, Mar. 2, 2019, with attachments — Stanford FCPA Clearinghouse, Case Info — Comment, Larry Neumeister, "Judge: US citizen serving as foreign diplomat can face trial", Washington Times, Feb. 4, 2016 — Comment, Matthew Russell Lee, "Francis Lorenzo Who Pled Guilty To Bribing PGA Refused Questions", Inner City Press, Mar. 9, 2019 — Comment, OCCRP, "UN Ambassador Admits Taking Millions in Bribes from Chinese Billionaire", Jul. 24, 2017
- Karen De Witt, "Exile's Effort to Return Puts Focus on Tax Loophole", N.Y. Times, Oct. 1, 1995 (Kenneth B. Dart, proposed as Belize consul)
This exception still leaves certain questions open, particularly for persons exercising the right of establishment in another country within the region EU/EEA/Switzerland and more interestingly for Irish and British citizens who reside in the other country. Northern Ireland raises particular questions in that the U.K.'s Ireland Act 1949 and similar Irish legislation provide for a Common Travel Area and that the citizens of the other country are not aliens. The Good Friday Agreement reinforces those rights; Brexit's "Irish Backstop" has put the relationship in question. From the standpoint of this essay an interesting question is whether the Court of Justice of the European Union would impede a Member State from implementing the reciprocal collection provision of a tax treaty with the United States as against a migrant worker exercising his or her EEA rights: CJEU case law on direct taxation (to 2018). The CJEU has only occasionally and obliquely addressed the limits of Member State capacity to grant or deny citizenship: Hanneke van Eijken, "European Citizenship and the Competence of Member States to Grant and to Withdraw the Nationality of their Nationals" (2010).
The European Commission does not necessarily go to the Court of Justice to enforce such rights: a quiet demarche to a Member State can work: Greek deprivation of nationality under former law to an ethnic Turk exercising his EU right of free movement; Ramadanoglou's Greek nationality was quietly restored. Forcing an issue to go before the CJEU rather than quietly conceding a single case can set a legal precedent that a recalcitrant government will regret: Rush Portuguesa Lda v Office national d'immigration,  ECR-I 1417. The IRS knows this too. See also: Thomas Christiansen et al, eds., Informal Governance in the European Union: An Introduction (2011).
On the conflict of nationalities and rights within the EU/EEA/Switzerland: Devorah Kalekin-Fishman and P. Pitkanen, eds, Multiple Citizenship as a Challenge to European Nation-states (2007) Google Books — Chapt. 1, "Theorizing Multiple Citizenship"
Many of the dual nationals and former U.S. citizens most severely affected by U.S. taxation of expatriates and renunciants are residents of Canada. Two Web forums discuss issues of conflict of laws, inequitable taxation, loss of tax-sparing provisions of the laws of one or the other country, and anomalous situations involving minors and mentally disabled persons unable to renounce U.S. citizenship and so unable to benefit fully from disability benefits and tax-sparing savings and pension provisions of Canadian law:
Other forums address similar issues for various countries:
- Association of Americans Resident Overseas (AARO), Paris (members in many countries)
- English Forum (Switzerland)
- Expat Forum (numerous country forums)
- Accidental Americans Facebook Group
- FAWCO, Federation of American Women's Clubs Overseas Tax systems can easily collide: governments may tax wealth or spending to a greater extent than income; exemptions and deductions are rarely compatible across borders.
- Reddit discussions of topics pertinent to this essay, including FATCA
On Australian pensions: Mondaq, Aug. 12, 2016: "Australia: The 'Super' Reason Australians Are Renouncing Their US Citizenship" (Archived copy); Marshalaine Dungo, "U.S. taxation of Australian Superannuation funds: when the Super is NOT so super after all", Moodys Gartner, July 27, 2016 (archived copy); Compare International Tax Blog. Sept. 14, 2017, "Withdrawal of Prior Blog Post Regarding Australian Superannuation Funds" (persisting uncertainty). Similarly: KPMG, "US Tax Implications —Novartis Pension Plans" (Switzerland) (Oct. 11, 2016)
While it is for each State to determine for itself who are its nationals it is not universally true that every State must give effect to such determination by a foreign State: Convention on Certain Questions Relating to the Conflict of Nationality Law (1930), art 1 (ratified by a small number of States, not including the USA, and denounced by Canada in 1996); Adam I. Muchmore, "Passports and Nationality in International Law", 10 U.C. Davis J. Int'l L. & Pol'y 301 (2004); H.F, van Panhuys et al. eds, International Law in The Netherlands, vol. 3 (1980), pp, 13-14.
U.S. tax treaties have saving clauses that with specific country exceptions reserve the right of the IRS to impose tax on most income as if the treaty did not exist as to its citizens and residents and some former citizens. Thus the U.S. is to tax U.S.-source income of dual nationals first; the taxpayer relegated to claiming tax credit, if possible, in the other country and seeking as appropriate Competent Authority assistance: Filler v. Comm'r, 74 T.C. 406 (1980). "The saving clause does not nullify the Convention; it nullifies the benefits provided by certain provisions to current citizens and certain former residents and citizens," Cole v. Comm'r, T.C. Summ. Op. 2016-22) No treaty addresses the issue of proof of facts relating to citizenship: the assumption seems to be that status is obvious. How far the treaty partner country need go in acknowledging a (denied) relationship between one of its own citizens or residents and the United States is an open question. The question is starker where the U.S. (second) nationality was retroactively restored. Some countries have no provision in law for renunciation. Exorbitant attribution of nationality by a country, based on ethnicity or residence especially, is well known in history.
There is a certain amount of unjustified hysteria in the literature on offspring of foreign diplomats: citizenship administratively assumed based on a birth certificate and wrongly issued Social Security account has no legal validity and would be revoked (archived copy) if brought to the attention of the State Department and the Social Security Administration. There is a subset of diplomats on the Blue List (as to whom the exception for offspring jus soli citizenship normally applies; list not published online after Fall 2020 issue) who have a spouse with U.S. nationality or permanent residence, whose U.S.-born children are citizens (see below); and there are consulate officers and diplomatic staff on the White List as to whom the jus soli exception does not apply: Joseph D. Becker, "The State Department White List and Diplomatic Immunity", 47 Am. J. Int'l L. 704 (1953). And see Jon Feere, "Birthright Citizenship for Children of Foreign Diplomats?" Center for Immigration Studies, Jul. 11, 2011 (Claiming that since offspring of Blue List diplomats in the U.S. are likely to receive normal birth certificates and may obtain Social Security cards, this is tantamount to citizenship. It is not: such offspring may have "Green Card" status to be claimed at majority but an application for a U.S. passport would be fraudulent. See below Expatriation, Conflict of Status, "Covered Expatriates", Estates and Trusts. A child born in the United States of a parent with diplomatic status whose non-diplomatic spouse is a citizen or permanent resident acquires United States citizenship at birth, Digest of U.S. Practice in International Law 1978, at 249, 250. Otherwise such a child acquires the status of a permanent resident, status retained at least until majority, 8 C.F.R. 101.3(a)(1),
- Matter of Huang, 11 I. & N. Dec. 190 (R.C. 1965),
- Matter of Chu, 14 I & N Dec. 241 (R.C. 1972).
- And see USCIS Policy Manual.
The upshot of this nationality discussion is that before addressing issues of possible liability for taxes and penalties for prior years and for undeclared foreign assets, entities and trusts, an expatriate or presumed "accidental American" should determine actual citizenship status. Judicial determination may be needed: the Hoda Muthana case above. The laws on both acquisition and loss of nationality have changed over time, sometimes with retroactive effect and sometimes not, but retroactivity can scarcely be usefully imposed on someone permanently established abroad.
The issue of taxation as a controlling or motivating factor in nationality is addressed in Michael S. Kirsch, “The Tax Code as Nationality Law” 43 Harv. J. Leg. 42 (2006). The article also looks at Constitutional and international-law issues of the quasi-nationality Congress has created for tax purposes.
5. Taxation Matters
The first issue is that assessment of U.S. taxes is based on spontaneous declaration by taxpayers. Enforcement depends on a vast network of reporting from financial institutions. The Foreign Account Tax Compliance Act (FATCA) enacted by the HIRE Act of 2010 (Pub. L. 111–147, 124 Stat. 71, March 18, 2010, H.R. 2847) led to a web of Intergovernmental Agreements (IGAs) with virtually every foreign country providing for reporting to the IRS of accounts held by presumed U.S. Persons with foreign banks, brokerages and other financial institutions and intermediaries. The aim was and is to enforce the laws requiring U.S. Persons to declare foreign assets exceeding specified values on FBAR (FinCEN Form 114) and IRS Forms including 8938 (financial assets, and see Comparison with FBAR), 3520/3520A (foreign trusts), 5471 and schedules and 926 (foreign corporations), 5472 (Foreign single-member LLCs), 8621 (PFIC), 8858 (foreign disregarded entities, 8832 (entity classification election), 8865 (foreign partnerships). Draconian penalties may apply for improper failure to file these forms whether any tax is due.
See U.S. Senate, Committee on Finance, "International Tax Working Group Submissions", March-April 2015 notably the testimony of Todd Stoudt and Permanent Subcommittee On Investigations, "Offshore Tax Evasion: The Effort to Collect Unpaid Taxes on Billions in Hidden Offshore Accounts" (2014). And the IRS Tax Crimes Handbook (Office of the Chief Counsel, 2009), DOJ Criminal Tax Manual (2022?), American Bar Association 34th Annual National Institute on Criminal Tax Fraud & 7th National Institute on Tax Controversy, Criminal Tax Workshop (Dec. 2017), Mirabaud Report: The Shell Bank Loophole: Billionaire tax evasion scheme exposes how weak enforcement of the Foreign Account Tax Compliance Act enables wealthy tax cheats to hide income offshore (2022)
But: "A compilation of comments and letters from Americans abroad on the effects of citizenship taxation", Submission to the United States Senate Finance Committee, International Tax Section, April 9, 2014. Other Congressional submissions through 2015. (These constituent complaints may have more political than academic-legal significance. Status, when an accident of birth, comes with benefits and costs, sometimes extreme and sometimes crippling and occasionally indefeasible.)
- William Byrnes, "Is FATCA ‘Much Ado About Nothing’? Is FATCA’s Tax Revenue Going to Offset Its IRS and Industry Costs?" (Klewer Tax Blog, Apr. 18, 2017)
- William Byrnes, Texas A&M University School of Law, "Background and Current Status of FATCA" (Sept. 2017).
- Erika K. Lunder, Carol A. Pettit, “FATCA Reporting on U.S. Accounts: Recent Legal Developments”, Congressional Research Service, Sept. 2016
- And for the United Kingdom, Chartered Institute of Taxation on the Common Reporting Standard, "The state of play on tax evasion and avoidance" (Mar. 2, 2017).
- OECD Global Forum on Transparency and Exchange of Information for Tax Purposes.
- American Citizens Abroad: "Why FATCA is Bad for America - Update" (2012?)
Part of the multilateral enforcement scheme has consisted of positive identification of users of financial services. That includes proof (or declaration) of nationality and submission of a national client identifier, typically a tax, national insurance or Social Security number, ITIN or EIN. Entities and trusts in the UK and elsewhere must obtain a 20-character alphanumeric Legal Entity Identifier. The latter has not been adopted in the United States (Internal Revenue Bulletin: 2016-29, July 18, 2016) which remains, partly because of state sovereignty in matters of corporate and trust law, a tax haven for nonresident aliens: Todd Ganos, "Forget The Panama Papers, Use The United States As A Tax Haven", Forbes, Apr. 25, 2016; Samuel D. Brunson, "The U.S. as Tax Haven? Aiding Developing Countries by Revoking the Revenue Rule", 5 Colum. J. Tax L. 170 (2014).
- Laura Sanders, "The IRS Is Still Coming for You, Offshore Tax Cheats", Wall St. J., Sept. 14, 2018 (Archived copy)
- Virginia La Torre Jeker, "Panama Papers Contain American Names; Revelations to Come!", World.Tax, May 13, 2016
- Jack Townsend, "New IRS Voluntary Disclosure Procedures and Civil Resolution Framework" (11/29/18; 11/30/18)
- Janet Novack, "In Reversal, IRS Gives Amnesty To Owners Of Secret Israeli Bank Accounts", Forbes, Sept. 19, 2013 (Re-admitted to OVDP after disqualification over Bank Leumi issues)
- Amy Q. Nguyen, "The Mysteries of NFT Taxation and the Problem of Crypto Asset Tax Evasion", 25 SMU Sci. & Tech. L. Rev. 323 (2022)
5.2. Extraterritorial Reach of the IRS
5.2.1. Citizenship-Based Taxation
The structure of the U.S. Tax Code is a matter of history and historical accident (both the concept of "allegiance" as a proxy for nationality and its afferent obligations, issues tested in Revolutionary times and subsequently and relying on Common Law jurisprudence) and taxation: the Civil-War origins of citizenship-based taxation.  Thus the U.S. Government is a jealous sovereign, and with its unique notion of "exceptionalism" deems its claim to allegiance pre-empts that of any other, even, in its domestic law, as to a dual national resident in the other country of nationality, and even if that person has never set foot in the U.S.A. (or in the alternative, was born there and left after a few days, a true "accidental American") See: Dept. of Justice, Income Tax Compliance By U.S. Citizens And U.S. Lawful Permanent Residents Residing Outside the United States and Related Issues (1998), pp. 38 ff. The dictum of Lord Mansfield's "Rule", often cited, has been less persuasive than imagined by many.
Statutes, Regulation, Guidance
- 50 U.S.C. § 453 [Selective Service] Registration
- 26 CFR § 1.1-1 Income tax on individuals.
- 26 U.S.C. § 7345 Revocation or denial of passport in case of certain tax delinquencies
- U.S. v. Alvarez-Machain, 504 U.S. 655 (1992) (The fact of respondent's forcible abduction does not prohibit his trial in a United States court for violations of this country's criminal laws) (Alvarez-Machain was later acquitted.)
- Blackmer v. United States, 284 U.S. 421, 437 (1932) (writ of certiorari; fines imposed on a U.S. citizen resident in France for disobeying a subpoena to testify in a criminal case) (Henry M. Blackmer: flight to avoid testifying in the Teapot Dome scandal and to evade taxes. Obituary, N.Y. Times, May 27, 1962.
- The Cherokee Tobacco, 78 U.S. 616 (1870) and other cases cited in Erika K. Lunder, "What Happens if H.R. 1 Conflicts with U.S. Tax Treaties?", Congressional Research Service (2017) (Legislative override of tax treaties)
- Cook v. Tait, 265 U.S 47 (1924) (Congress has power to tax the income received by a native citizen of the United States domiciled abroad from property situated abroad) — See John Richardson, "Cook v. Tait: More About the Meaning of Citizenship Than About the Scope of Taxation", Isaac Brock Society blog, May 24, 2023
- Dileng v. Comm'r, N.D. Ga. Case 15-cv-1777 — Docket — Opinion and Order — Comment, Procedurally Taxing Blog, "Why Is the IRS Collecting Taxes for Denmark?" — Comment, Charles W. Cope, "Federal District Court Allows the IRS to Collect Income Tax" (Jan. 2016) (IRS collection of Danish income tax from Danish golfer Torben Dileng pursuant to treaty)
- Laura Snyder, "The unacknowledged realities of extraterritorial taxation", 47 So. Ill. U. L. J. 243 (2023)
- Kristy N. Kamarck, "The Selective Service System and Draft Registration: Issues for Congress", Congressional Research Service (Apr. 11, 2016)
- "U.S. Returns Deserter to Canada", Washington Post, Aug. 31, 1974, p. A13; back story: Daryl C. McClary, "Ronald J. Anderson, deserter from U.S. Army, is arrested in Peace Arch Park on August 24, 1974", HistoryLink, May 3, 2011 (The limits on extraterritorial action by Government employees, especially with video evidence)
- Reuven S. Avi-Yonah, "Tax Treaty Overrides: A Qualified Defence of U.S. Practice", book chapter (2006)
- Anthony C. Infanti, "Curtailing Tax Treaty Overrides: A Call to Action", 62 Univ. of Pittsburgh L. Rev. 677 (2001)
- Georg Kofler, "Legislative Tax Treaty Overrides in Austrian, German, and EU Law", British Tax Rev. (2022)
- Erika K. Lunder, "What Happens if H.R. 1 Conflicts with U.S. Tax Treaties?", Congressional Research Service, Dec. 19, 2017
- Luís Eduardo Schoueri, "Tax Treaty Override: A Jurisdictional Approach", 42 Intertax 682 (2014) (Archived copy)
- Jonathan A. Lonner, "Official Government Abductions in the Presence of Extradition Treaties", 83 J. Crim. L. & Criminology 998 (1992-1993)
- Barbara A. Silver, "Modernizing the Revenue Rule: The Enforcement of Foreign Tax Judgments", 22 Ga. J. Int'l & Comp. L. 609 (1992)
- Jaffe v. Boyles, 616 F. Supp. 1371 (W.D. N.Y. 1985) — Comment, Kristofer R. Schleicher, "Transborder Abductions by American Bounty Hunters - The Jaffe Case and a New Understanding Between the United States and Canada", 20 Ga. J. Int’l & Comp. L. 489 (1990) — See Jaffe v. Grant, 793 F.2d 1182, 1124 (11th Cir. 1986) — Wikipedia bibliography — Comment, UPI, "Bounty hunters await sentence in kidnapping", May 29, 1986 ("Timm Johnsen, 43, an Orlando bounty hunter, and Daniel Kear, 37, a Fairfax, Va., bondsman, guilty. They will be sentenced June 9 for kidnapping Sidney Jaffe from Canada Sept. 23, 1981") — DOJ Letter, Sept. 24, 1982, D. Lowell Jenson to Harry F. Byrd, Jr. re: Timm Johnsen and Daniel Kear ("whether private persons representing bail bondsmen can cross international borders in order to bring back individuals who have violated conditions of their bond") — Wade A. Buser, "The Jaffe Case and the Use of International Kidnapping as an Alternative to Extradition", 14 Ga. J. Int’l & Comp. L. 357 (1984).
- Christopher L. Blakesley, "United States Jurisdiction Over Extraterritorial Crime", 73 J. Crim. L. & Criminology 1109 (1982)
- Eugene F. Waye, "Conflict of Laws -- Operation of American Laws Outside the Territorial United States as Established by Judicial Declaration", 33 Notre Dame L. Rev. 98 (1957).
- IRS Summary of FATCA Timelines
Editorial Note: As to treaty mutual tax collection provisions, there is a generalized exception for citizens of the requested country. The French treaty provides: "The assistance provided for in this Article shall not be accorded with respect to citizens, companies, or other entities of the Contracting State to which application is made…." The French Cour de Cassation invalidated such treaty provisions with Mali and Senegal on technical grounds: Ass. Comm., May 2, 1972, Bull. Civ. IV, No. 124; 2 Juris-Classeur Droit Fiscal International, Fasc. 358 III A. The current treaty with Senegal was signed in 1974 and with Mali in 1972. Issues of administrative and judicial integrity and compliance with human rights norms have arisen in connection with collection assistance requested by some countries, just as it has with Red Notices filed with Interpol. Red Notices have been posted based on tax evasion, even where the crime would not necessarily support extradition. See Alan R. Johnson, Lawrence Nirenstein, Stephen E. Wells, "Reciprocal Enforcement of Tax Claims Through Tax Treaties", 33 Tax Lawyer 469 (1980)
5.2.2. Collection of Tax Debts Abroad
- Assistance in the Collection of Taxes (Article 27) and its Commentary. Finalised Text as Agreed by Committee of Experts on International Cooperation in Tax Matters, at its Second Session, Geneva, 30 October-3 November 2006, Art. 27
- Convention Between Canada and the United States of America, With Respect to Taxes on Income and on Capital, Article XXVI A, Assistance in Collection ("1. The Contracting States undertake to lend assistance to each other in the collection of taxes referred to in paragraph 9, together with interest, costs, additions to such taxes and civil penalties, referred to in this Article as a 'revenue claim'.")
- Crawford v. U.S. Dept. of Treas., 116 AFTR 2d 2015-6288 (S.D. Ohio 2015) (sometimes called the "Bopp case" after the lead lawyer) (Court version) ("Plaintiffs request that the Court enjoin Defendants from enforcing the Foreign Account Tax Compliance Act ('FATCA'), the intergovernmental agreements ('IGAs') negotiated by the United States Department of the Treasury ('Treasury Department') to supplant FATCA in the signatory countries, and the Report of Foreign Bank and Financial Accounts ('FBAR') administered by the United States Financial Crimes Enforcement Network ('FinCEN').") — Lawsuit timeline
Crawford v. U.S. Dept. of Treas., 120 AFTR 2d 2017-5544, 868 F.3d 438 (6th Cir. 2017) (Court version) (Lack of standing)
Crawford v. U.S. Dept. of Treas., 120 AFTR 2d 2017-5913 (6th Cir. 2017) (Petition for rehearing en banc denied)
Crawford v. U.S. Dept. of Treas, Supreme Court, Case 17-911 — Docket — Petition for Certiorari, Case 17-911, Brief for Gov't in opposition — Reply Brief — Cert. denied, Apr. 2, 2018
- Dewees v. U.S., 272 F.Supp.3d 96 (D. D.C. 2017) — Docket — Complaint — Gov't Brief, Motion to Dismiss — Dewees Opposition — Memorandum Opinion (No relief for IRS use of tax treaty collection provision to enforce IRC Form 5471 deficiency penalty in Canada, not Ch. 31 FBAR penalty; Dewees had never acquired Canadian citizenship which would have excluded him from the Tax Treaty reciprocal collection provision.) — Comment, John Richardson, "Dewees 1: The Canada U.S. tax treaty does NOT protect Canadians from U.S. tax liability but does mean that Canada will NOT assist the U.S. in collection!" — Comment, Virginia La Torre Jeker, "IRS Has a New Audit Strategy: Focus OVDP Withdrawals and Declines" (May 3, 2017) (Dewees had made an initial application for OVDP amnesty, thus providing the IRS with facts supporting an assessment of large penalties after he opted out of a proposed settlement). Comment, Tax-Expatriation, "Mr. Dewees gets Smacked! U.S. District Court Upholds Multiple $10,000 Penalties (US$120,000 – NO Forms 5471) for USC Residing in Canada" (Aug. 12, 2018) (Cf. Retfalvi, below)
- Her Majesty Queen in Right of Province of British Columbia v. Gilbertson, 597 F.2d 1161 (9th Cir. 1979). (Enforcement of Canadian tax refused; this case is probably overtaken by subsequent treaty)
- U.S. v. Harden,  S.C.R. 366 (Can. S. Ct.) ("A foreign State cannot escape the application of the rule that in no circumstances will the courts directly or indirectly enforce the revenue laws of another country, which is one of public policy, by taking a judgment in its own courts and bringing suit here on that judgment.")
- In re Morgan, 1999 Man. D. J. 185, (1999) 88 A.C.W.S. (3d) 964 (Undischarged bankrupt who moved from Canada to the United States pursued by the IRS for Canadian tax debts)
- Fabien Lehagre litigation (France) — Association des Américains Accidentels — Comment, Antoine Garbay, "Fiscalité : les «Américains accidentels» engagent un recours auprès du Conseil d'État", Oct. 3, 2017
- Republicans Overseas Israel, A.R. and Rinat Schreiber v. GOI, Israel Sup. Ct. (2016) — Comment, Marc Zell (Facebook) and Yonah Jeremy Bob, "Legal Background: Why is the Republican Party coming to the Israeli High Court for help?", Jerusalem Post, Jan. 11, 2016 — "September 12, 2016: Israel Supreme Court quashes FATCA injunction — but the Israeli FATCA litigation fight will continue"
- Retfalvi v. U.S., 335 F.Supp.3d 791 (E.D. N.C. 2018) (U.S.-Canadian citizen/physician's refund complaint, seeking to recover amounts IRS levied pursuant to U.S.-Canada treaty and Canada's collection assistance request for unpaid Canadian taxes dismissed)
- Van deMark v. Toronto-Dominion Bank, 68 O.R. (2d) 379 (Ont. H.C.J.) (Funds seized by the IRS from the U.S. branch of a Canadian bank, on the basis of transferee liability of the heir of a tax debtor, had nevertheless to be repaid by the bank to their Canadian depositor in the absence of a contrary contractual provision. Also an issue of transferee liability.)
- U.S. v. van der Horst, 270 F.Supp. 365 (D. Del. 1967) (Fraudulent conveyance matter; judgment against nonresident expatriated former U.S. citizen in rem only.)
- Miller v. U.S., 921 F.Supp. 494 (N.D. Ohio 1996), 955 F.Supp. 795 (N.D. Ohio 1996) (Contents of safe deposit box in Netherlands claimed by IRS)
- Giovanni V. Alberotanza. Michael J. March, "When Uncle Sam Crosses the Border: What Is in the IRS International Collection Toolbox", 21 J. Tax Prac. & Proc. 13 (2019-2020) (Another copy)
- Wim Mijs, Chief Executive, European Banking Federation, Letter to U.S. Dep't of Treasury, Feb. 22, 2019, "Practical issues in complying with FATCA - request for relief"
- Hale Sheppard, "Assessing Tax Liabilities is One Thing, Collecting Them Abroad is Another New Case Shows International Reach of the IRS" (2017)
- Deborah L. Jacobs, "Heirs Left With Unpaid Bills May Inherit More Grief Than Gold", Forbes, June 18, 2014 (FBAR issues; power of attorney; executor obligations; transferee liability)
- Moodys Gartner, "Canada: IRS Says FBAR Penalties Not Collectible Under Canada-US Treaty?", Aug. 23, 2012 (Under the US-Canada tax treaty the mutual collection provision does not apply to persons who were Canadian citizens when the tax or penalty accrued, and it does not apply to FBAR penalties).
- Kevin Jestin, "Mutual Legal assistance in Tax Matters Recent Trends and Challenge Ahead" (2008)
- Brenda Mallinak, "The Revenue Rule: A Common Law Doctrine for the Twenty-first Century", 16 Duke J. Comp. & Int'l L. 79 (2006)
- Whitman, Robert, "Tax Collection from Estates of Nonresidents" (1968). Faculty Articles and Papers. 294. (of historical interest)
- European Union: Mutual legal assistance and extradition (including EU & US cooperation)
- Clive Geoffrey Harfield, "Process and Practicalities: Mutual Legal Assistance and the Investigation of Transnational Crime within the EU from a UK Perspective, 1990-2004" (2004)
- EU Extradition Law: Mutual Legal Assistance (2017)
- Davide Anghileri, "EU Parliament adopts controversial report on tax avoidance and evasion", MNE Tax, Mar. 27, 2019 — European Parliament resolution of 26 March 2019 — European Parliament, Report on financial crimes, tax evasion and tax avoidance (2018/2121(INI))
- American Expat Financial News Journal, "FATCA hearing: Europe's 'accidentals' unleash frustration over official EU 'ignoring' of their struggles", Nov. 13, 2019
- European Data Protection Board, Statement 01/2019 on the US Foreign Account Tax Compliance Act (FATCA)
- Fed. Tax Coordinator, Penalties for failure to meet FBAR reporting requirement on interests in foreign bank and financial accounts—information-reporting penalty rules (Apr. 2023)
5.2.3. Passport Revocation
- Adams v. Comm'r, 160 T.C. No. 1 (2023) (U.S. Tax Court does not have jurisdiction to review the constitutionality of the Secretary of State's passport actions under section 32101 of the FAST Act.)
- McNeil v. U.S., 2021 WL 1061221 (D.D.C. 2021) ("The Court finds no support in § 7345 or anywhere else in the tax code for the notion that Congress wanted § 7345(e) to become a vehicle for challenging IRS procedures and tax assessments that cannot otherwise be challenged.")
- Hadwan v. Dep't of State, 340 F.Supp.3d 351 (S.D. N.Y. 2018) (Plaintiff "did not make strong showing of bad faith or improper behavior on part of agency" in passport revocation
- Maehr v. Dep't of State, 5 F.4th 1100 (10th Cir 2020) (Restricting international travel of taxpayer who was seriously delinquent in paying his taxes by revoking his pass- port was rationally based on legitimate government interest.)
- Ruesch v. Comm'r, 154 T.C. 289 (2020), Affirmed in Part, Vacated in Part, Remanded, 25 F.4th 67 (2nd Cir. 2022) (Action challenging certification of her tax debt as “seriously delinquent,” as could allow revocation or denial of passport, and taxpayer also challenged underlying civil penalties; dismissed)
- U.S. v. Struckman, 611 F.3d 560 (9th Cir. 2010) (affirming case below) — Struckman opening brief — Gov't brief — Certificate of interested persons — Oral argument — 2010 U.S. App. LEXIS 13202
- U.S. v. Struckman, W.D. Wash. Case 04-cr-229 Docket — Indictment — Order regarding defendant's motions to dismiss indictment for outrageous government misconduct and unnecessary delay as to David Struckman by Judge Robert M. Takasugi — (Earlier civil case, Starkey v. Struckman et al.: Docket — Certifying judgment from N.D. Okla. for $4,650,905.00)
- Schoenman v. F.B.I., 573 F.Supp.2d 119 (2008) (FOIA requests regarding passport revocation; Ralph Schoenman had been a personal secretary to Bertrand Russell)
- Kent v. Dulles, 357 U.S. 116 (1958) (Right to travel)
- Zemel v. Rusk, 381 U.S. 1 (1965) (Secretary of State is statutorily authorized to refuse to validate the passports of United States citizens for travel to Cuba)
- IRS: Revocation or Denial of Passport in Cases of Certain Unpaid Taxes
- Internal Revenue Manual, Passport Program
- Evan M. Stone, "Passport revocation as a collection tool" (July 1, 2022)
- Michael S. Kirsch, "Conditioning Citizenship Benefits on Satisfying Citizenship Obligations", 2019 U. Ill. L. Rev. 1701 (Notably FAST Act passport limitations)
- John C. Torpey, The Invention of the Passport: Surveillance, Citizenship and the State (OUP, 2000, 2018)
- Joshua D. Blank, "Collateral Compliance", 162 U. Pa. L. Rev. 719 (2014)
- Procedures for Recommending Revocation of a U.S. Passport to the Department of State; Adjudicators Field Manual, Chapter 83 (AFM Update AD 10-46)
- 22 CFR § 51.62 - Revocation or limitation of passports and cancellation of Consular Reports of Birth Abroad.
- Patrick Weil, "Citizenship, Passports, and the Legal Identity of Americans: Edward Snowden and Others Have a Case in the Courts", Yale L.J. Forum, Apr. 23, 2014
- Compare: Passport denial program for arrears in child support payments (Thus: Ford v. Department of Social Servs., 41 Misc. 3d 1237(A), 983 N.Y.S.2d 203 (S.Ct. N.Y. Co. 2013) ($400,000 unpaid over 24 years)
5.2.4. Foreign Account Tax Compliance Act (FATCA)
What foreign assets are subject to FBAR (and FATCA) reporting is not always clear. Real estate and commodities not in an entity or trust wrapper or financial account are excepted. For foreign financial assets the criteria are control, legal title or beneficial interest.
- Dept. of Treasury, Resource Center, Country-by-country Intergovernmental Agreements
- HIRE Act, Public Law 111–147
- H.R.3933 - Foreign Account Tax Compliance Act of 2009 — 111th Congress
- Oracle ® FLEXCUBE Universal Banking Core Entities User Guide
- IRS Summary of Key FATCA Provisions
- 26 U.S. Code Chapter 4 - Taxes to enforce reporting on certain foreign accounts
- Forbes, "The TIGTA Report: Lessons From A Decade Of The Foreign Account Tax Compliance Act" (2022)
- Taxpayer Advocate: Foreign Account Tax Compliance Act (FATCA): The IRS's Approach to International Tax Administration Unnecessarily Burdens Impacted Parties, Wastes Resources, and Fails to Protect Taxpayer Rights (2020)
- LexisNexis® Guide to FATCA Compliance: Chapter 1 by William Byrnes, Robert Munro (2016) and William Byrnes, "Is FATCA ‘Much Ado About Nothing’? Is FATCA’s Tax Revenue Going to Offset Its IRS and Industry Costs?", Kluwer Int'l Tax Blog, Apr. 2017.
- Ross K. McGill, US Withholding Tax: Practical Implications of QI and FATCA (2013)
- IRS Explanation, including Intergovernmental Agreements
- Thomson Reuters, "What is FATCA? What is CRS? Understanding FATCA regulations and requirements"
- Impact of FATCA on some nonresident aliens with no connection to the USA: foreign financial services entities fearful of sanctions: "British families billed £500 – to prevent Americans dodging tax", Daily Telegraph, Aug. 23, 2014 (Archived copy)
- Law Society of Scotland, "Foreign Account Tax Compliance Act (FATCA) Foreign Account Tax Compliance Act (FATCA)" ("All trusts are caught by FATCA irrespective of whether or not they have US persons as settlors, trustees or beneficiaries or US assets.")
- David Budworth, "Millions of British investors to make US tax declaration: British investors must swear they're not American as US cracks down on tax evasion", Times (London), May 30, 2011, Business News, p. 36.
- Robert W. Wood, "FATCA Letters Promise Disclosure To IRS, What To Do?", Forbes, Nov. 10, 2014
- Kristen M. Garry, Etienne Gelencsér, Eileen M. O'Pray, Naomi King, Jeffrey B. Tate, "FATCA: Implications for Non-US Funds", 15 J. Investment Compliance 1 (2014)
- The Economist: (June 28, 2014) "Taxing America’s diaspora: FATCA’s flaws" ("America’s new law on tax compliance is heavy-handed, inequitable and hypocritical").
- Joan K. Crain, "What Multinational Families Need to Know About FATCA", BNY Mellon Wealth Management (July 2019)
- Vivienne Walt, "Why 'Accidental Americans' Are Desperate to Give Up Their U.S. Citizenship", Time, Dec. 23, 2020
Lawsuits against FATCA and its enforcement:
- Republicans Overseas: Crawford v. U.S. Dept. of Treasury, S.D. Ohio, 15-250 (Archive of downloadable documents)
- Dawn S. Markowitz, "Dismissal of FATCA Lawsuit Upheld. Sixth Circuit affirms that plaintiffs lacked standing to challenge foreign reporting requirements." (Aug. 29, 2017) (Archived copy)
- Anthony Parent, "Jim Bopp politely destroys the 6th Circuit's FATCA suit dismissal" (Aug. 24, 2017)
- Ephraim Moss, "Supreme Court Decision Further Confirms FATCA Is Here To Stay" (May 28, 2018) (See above, Para. 5.2.2 for documents relating to the Crawford litigation)
- Alliance for the Defence of Canadian Sovereignty, Canadian FATCA IGA litigation: Hillis and Deegan v. Attorney General of Canada and Minister of National Revenue — Trial court judgment — Isaac Brock Society, Archive of downloadable documents — Request for funds to finance appeal — Business in Vancouver, “Tax-evasion crackdown runs into gauntlet of legal challenges”
- Israeli litigation: BNA report of government objection
- Jennifer McLoughlin, "French ‘Accidental Americans’ Seek to Advance FATCA Fight", Tax Analysts, Feb. 18, 2019 (More on the Facebook page of the Association des Américains Accidentels)
- Étienne Goetz, "FATCA : les « Américains accidentels » poursuivent plusieurs banques en justice", Les Echos, Mar. 27, 2019
- Autorité de protection des données, "Belgian DPA prohibits the transfer of tax data of Belgian “Accidental Americans” to the USA" (May 24, 2023)
It is the digitalization of financial data that has made extreme enforcement possible: Oxford University Centre for Business Taxation, Implications of digitalization for international corporate tax reform (July 2017) (Archived copy). Digital Commons Network, links to Full-Text Articles in "Taxation-Transnational".
5.2.5. Swiss Bank Program
The Swiss Bank Program, which was announced on August 29, 2013, provide[d] a path for Swiss banks to resolve potential criminal liabilities in the United States. Swiss banks eligible to enter the program were required to advise the department by Dec. 31, 2013, that they had reason to believe that they had committed tax-related criminal offenses in connection with undeclared U.S.-related accounts. Banks already under criminal investigation related to their Swiss-banking activities and all individuals were expressly excluded from the program. ~ Department of Justice announcement, Sept. 5, 2018
- Carolyn H. Kendall, "A Conversation with UVA Law’s Brandon Garrett About the DOJ’s Swiss Bank Program" (Oct. 22, 2015)
- Senate Finance Committee Press Release, "Wyden Investigation Finds Credit Suisse Complicit in Ongoing Tax Evasion by Ultra-Wealthy Americans" (Mar. 29, 2023) — Report — Reuters, Mar. 29, 2023, "Credit Suisse has violated U.S. tax evasion deal, Senate Committee finds"
- U.S. v. Wegelin, S.D. N.Y., Case 12-cr-2 — Indictment — Verified Complaint — Plea Agreement (with Stipulated Preliminary Order of Forfeiture) — Plea (transcription).
In re Tax Liabilities of John Does [with interests in accounts at Wegelin & Co.], S.D. N.Y., Case 13-mc-21 — Declaration of Cheryl R. Kiger — Memorandum of Law in Support of Ex Parte Petition to Serve John Doe Summons — Order re ex parte petition — Notice of petition — DOJ Press Release, "Swiss Bank Sentenced In Manhattan Federal Court For Conspiring To Evade Taxes. In First-Ever Sentence Of A Foreign Bank, Wegelin & Co. Ordered To Pay The United States Approximately $58 Million For Conspiring To Evade Taxes" — Comment, Nate Raymond and Lynnley Browning, "Swiss bank Wegelin to close after guilty plea", Reuters, Jan. 4, 2013 —DOJ Press Release, "Manhattan U.S. Attorney forfeits over $16 million seized from indicted Swiss bank’s U.S. account. [The Court] entered a default judgment and final order of forfeiture for over $16 million seized from the U.S. correspondent account of Wegelin & Co., a Swiss private bank. The funds will be deposited in the Treasury Forfeiture Fund."
- U.S. v. All funds on deposit at UBS, AG, Account no. 101-WA-358967-000, held in the name of Wegelin & Co., Defendants in rem, S.D. N.Y., Case 12-cv-836 — Docket — Verified Complaint (Archived copy) — Default judgment
- U.S. v. All Assets Held at Bank Julius Baer & Co., 664 F. Supp. 2d 97 (D. D.C. 2009) — Julius Baer Press Release, Feb. 5, 2016, "Julius Baer announces final settlement with the U.S. Department of Justice regarding its legacy U.S. cross-border business"
Major settlement agreements published by DOJ
- Bank CIC Schweiz
- Bank EKI Genossenschaft
- Banque Cantonale du Valais
- Banque Cantonale Neuchâteloise
- Banque Cantonale Vaudoise
- Banque Internationale à Luxembourg (Suisse) SA
- Banque Pasche SA
- BHF-Bank (Schweiz) AG
- BNP-Paribas (Suisse)
- DZ Privatbank (Schweiz) AG
- E. Gutzwiller & Cie., Banquiers
- Gonet & Cie.
- Hyposwiss Private Bank Genève SA
- LLB Verwaltung (Switzerland) AG — S.D. N.Y. Forfeiture Complaint — Statement of Facts
- NPB Neue Privat Bank AG — Signed statement of facts
- Piguet Galland & Cie SA
- PostFinance AG — Background (no significant dealings with U.S. Persons; nominal $2 million penalty, (Dec. 15, 2015)
- St Galler Kantonalbank — Media release
- Société Génerale Private Banking (Suisse) SA
- Standard Chartered Bank (Switzerland) SA, en liquidation
- Swisspartners Investment Network
- UBS Plea Agreement — DOJ Press Release
- Valiant Bank AG
- Zürcher-Kantonalbank — Reuters, "U.S. ends Zurich bank ZKB's criminal tax evasion case", Sept. 3,2021
- DOJ, Swiss Bank Program, with complete list of banks and penalties (84 as of Feb. 22, 2023) ("a path for Swiss banks to resolve potential criminal liabilities in the United States") (Archived copy) — Comment, Jack Townsend, "My List of Category 2 Banks Obtaining NPAs" (1/28/16; 1/30/16; 2/7/16)
- DOJ Press Release, "Justice Department Reaches Final Resolutions Under Swiss Bank Program", Dec. 29, 2016
- Swiss Banking Ombudsman: Swiss banks are not obliged to do business with U.S. Persons even if they hold Swiss nationality (in French) (German version) (Google Translate, English)
- Exhibit to non-prosecution agreement between U.S. DOJ and Neue Privat Bank AG, Zurich (Statement of Facts) — DOJ Press Release, "Justice Department Announces Resolution With NPB Neue Privat Bank AG" (Jul 18, 2018) — Comment, Jack Townsend, "NPB Neue Privat Bank Enters Nonprosecution Agreement" (7/19/18)
- David Enrich, "A Swiss Banker Helped Americans Dodge Taxes. Was It a Crime?", N.Y. Times, Jan. 6, 2018 (Archived copy) ("Stefan Buck created bank accounts for dozens of Americans hiding money from tax collectors. The U.S. tried to hold him personally accountable.") and several prior articles on the same subject. Buck was acquitted on Nov. 21, 2017, S.D. N.Y. case 1:13-cr-00282-JSR (Indictment) (Decision and order) (Acquittal). Similar acquittal, Raoul Weill (UBS). This might alter the strategy of foreign bankers otherwise inclined to accept a plea bargain (guilty plea by Susanne Rüegg-Meier, Credit Suisse). And see Reuters, Dec. 9, 2016 "Ex-Swiss banker goes home after U.S. loses extradition from Germany" (Wegelin; "Bank to close")
- DOJ Press Release, "Justice Department Announces Three Banks Reach Resolutions Under Swiss Bank Program" (Dec. 17, 2015)
- Jack Townsend, Federal Tax Crimes Blog, "US Tax Program Site With Information on Swiss Banks Joining US DOJ Swiss Bank Program" (7/11/15), linking to "US Tax Program for Swiss Banks"
- "Fewer and fewer banks accept [accounts with] Swiss abroad" (in French), Le Temps, Aug. 11, 2014 (Hardship of denial of accounts or else imposition of heavy maintenance charges for individuals, especially pensioners on fixed income).
- David B. Massey, Daniel W. Levy, Jason H. Cowley, "UBS, Wegelin, and Offshore Banking Prosecutions: The Power of General Deterrence", Tax Enforcement II (May 2013)
- John Letzing and John Revill, "More Swiss Banks Join U.S. Disclosure Program", Wall St. J., Dec. 16, 2013 (Archived copy)
5.3. Flight, Absconding, Fugitive Status and Absence from the Jurisdiction; Commands to Repatriate Assets
Departure or absence from the jurisdiction can frustrate civil enforcement and prosecution. It is noteworthy that in each case of pursuit of a foreign-based FBAR-noncompliant individual cited in this essay the willingness of the taxpayer, banker or judgment debtor to appear or comply resulted from levy (or potential levy) on assets within the USA, risk of commercial loss, expectation (or hope) of acquittal, or a changing environment for extradition and extraterritorial enforcement of judgments and inability to travel. The hundreds of cases cited here represent only a fraction of IRS pursuit of FBAR and other tax and tax penalty debtors: tens of thousands have paid or compromised. Some must have claimed prior relinquishment of citizenship; perhaps a few could claim error in an initial grant of a passport following birth abroad: an Abdo Hizam situation discussed above. The IRS does pursue expatriated Americans for fraudulent exit tax declarations (Form 8854): Oleg Tinkov.
- U.S. v. Baxi, C.D. Cal., Case 10-cr-227, Docket — Order of Detention — Judgment — Sean Emery, Orange County Register, May 9, 2016, "Former tax fugitive from Ladera Ranch sentenced to prison"
- U.S. v. Buck, 2017 U.S. Dist. LEXIS 158080 (S.D. N.Y.) — U.S. v. Buck, 2015 U.S. Dist. LEXIS 5434 (S.D. N.Y.)
- Stefan Buck: U.S. v. Paltzer, 2019 WL 1448362, 2019 U.S. Dist. LEXIS 63558 (S.D. N.Y.), No. 13-cr-282 — Indictment (with Stefan Buck who was acquitted, see above) — Docket (CourtListener, with downloadable documents from PACER and RECAP) —Zurich Website — Paradise Papers — David Enrich, N.Y. Times, Jan. 6, 2018, "A Swiss Banker Helped Americans Dodge Taxes. Was It a Crime? Stefan Buck created bank accounts for dozens of Americans hiding money from tax collectors. The U.S. tried to hold him personally accountable." (Archived PDF)
- U.S. v. Buff, 20-cv-07182 S.D. N.Y., Docket — Complaint (FOIA matters) — Magistrate recommendation 2023 U.S. Dist. LEXIS 75662 (S.D. N.Y., Apr. 28, 2023) — Tax Notes version ("The original penalty assessed was $60,000. However, following the Supreme Court's recent decision in Bittner v. United States, 598 U.S. __ (2023), which found that the Bank Secrecy Act imposes a maximum penalty for non-willful violations of $10,000 per report, not per account, Plaintiff calculated a lower penalty of $30,000. … Defendant holds dual citizenship from France and the United States. … The taxpayer lived and attended school in the United States and travels to the United States twice annually. The taxpayer's business experience shows, that with little effort, the taxpayer would likely have been able to determine if her income from her foreign banks was reportable."); prior cases: 2022 WL 11899597 (S.D. N.Y. Oct. 20, 2022) (Remote deposition of defendant. "United States' interest in allowing court system to function by compelling parties to participate in discovery and in vindicating its tax laws outweighed France's interest in resisting foreign discovery through its blocking statute that conflicted with United States discovery laws as weighed in favor of compelling defendant, an American citizen who resided in France, to be deposed pursuant to Federal Rule of Civil Procedure, rather than the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters.") 2022 WL 11318419 (S.D. N.Y. Oct. 18, 2022); 2021 WL 4148730, 2021 U.S. Dist. LEXIS 173360 (S.D. N.Y. Sept. 13, 2021), 2021 WL 4556751, 2021 U.S. Dist. LEXIS 85357 (S.D. N.Y. May 4, 2021) — Freeman Law comment, 2022, "Buff was Kind of Weak: FBAR Penalties". — Editor comment: This is one of a very few reported cases involving pursuit of FBAR-noncompliant U.S. taxpayers resident abroad. The original claim by the IRS (according to Ms. Buff's 2020 complaint linked above, was for as much as $450,000 and the IRS levied on her accounts totaling $145,000. By the grace of her 4-year pursuit of procedural matters, has now been reduced by half in the light of the Bittner decision, and apparently to $30,000. (Compare Blackmer v. United States above)
- U.S. v. Cambata, E.D. Va., Case 15-cr-362 — Docket — Criminal Information — Plea Agreement — Judgment — DOJ Press Release, "Former U.S. Citizen Pleads Guilty to Tax Fraud Related to Swiss Financial Account. Used Hong Kong Entity and Foreign Accounts in Switzerland, Monaco and Singapore to Conceal Funds" — Comment, Jack Townsend, "Another Taxpayer Guilty Plea for Offshore Account Misbehavior" (2/3/16) — Comment, Matthew Lee, "DOJ’s Latest Offshore Tax Case Shows Expatriates Who Renounce U.S. Citizenship Not Immune From Prosecution" (Feb. 4, 2016) — Comment, Virginia La Torre Jeker, "Expatriating: No Protection Against Criminal Tax Prosecution". World.tax, Feb. 15, 2016 — Comment, Virendrasingh Ghunawat, "Cambata Aviation to open a can of political worms, ED begins examination", India Today, Mar. 16, 2017 — Ed. Note: It is true that renunciation of U.S. citizenship does not extinguish liability for tax crimes, while a citizen or thereafter. However, absent charges of money laundering or common-law fraud, it may be difficult for the IRS, DOJ and State Department to exercise jurisdiction (see "extradition" in Enforcement and Partial Abatement Matters). It appears likely that in view of Cambata's aviation business and the terms of a negotiated plea agreement, subjecting himself to the jurisdiction of the E.D. Va. was a business decision. — Comment, Indian Express, Oct. 18, 2017, "Court cancels bail to Cambata Aviation promoter. The Dindoshi sessions court last week cancelled the anticipatory bail granted to Cambata in 2015" (Interpol Red Notice filed) — Comment, Aditya Anand, "Employees left in the lurch as Cambata shuts shop", Mumbai Mirror, Aug. 23, 2016 — Mentioned in Manafort Sentencing Memorandum (see p. 40)
Cambata v. U.S. (E.D. Pa. 16-mc-219 — Docket — Petition for an order quashing the Internal Revenue Service summons to their attorney
- U.S. v. Lipukhin, W.D. Mo. Case 14-cr-71 — Docket — Indictment — DOJ Press Release, "Former President of Russian Steel Producer’s U.S. Subsidiary Indicted for Hiding Assets in Secret Swiss Bank Accounts" — Jack Townsend Comment, "Another UBS Depositor Indicted; the Russian Connection" (3/21/14) — According to the indictment, Lipukhin moved back to Russia in 2007; he had been a Green Card holder, not a U.S. citizen.
- Marc Rich & Co. A.G. v. United States (In re Marc Rich & Co. A.G.), 739 F.2d 834 (2d Cir. 1984) (subpoena). The Clinton pardon did not affect Rich's state tax liability: Jessica Reaves, "The Marc Rich Case: A Primer", Time, Feb. 13, 2001 — Douglas Martin, N.Y. Times, June 26, 2013, "Marc Rich, Financier and Famous Fugitive, Dies at 78" (Archived copy) — Marc Rich never returned to the USA and reportedly did not succeed in attempting to renounce his U.S. citizenship — Daniel Ammann, The King of Oil: The Secret Lives of Marc Rich (2009)
- U.S. v. Singenberger, S.D. N.Y. Case 11-cr-620 — Docket — Indictment — DOJ Press Release, "Manhattan United States Attorney announces charges against Swiss financial adviser for conspiring with over 60 U.S. taxpayers to hide more than $184 million in Swiss bank accounts" (July 21, 2011) — Singenberger apparently remains a fugitive, there is no activity on the Docket beyond his indictment in 2011.
- U.S. v. Raoul Weil, S.D. Fla, Case 08-cr-60832 (former UBS banker) — Docket — Indictment — Judgment of acquittal — Valentina Accardo, Reuters, Nov. 28, 2013, "Exclusive: Ex-UBS banker Weil agrees to be extradited to U.S."
- U.S. v. Kevin Scott Wynn, S.D. Tex. Case 20-mj-1534, Docket — Extradited (or deported) from Mexico — Defendant committed to the Arizona District — DOJ Press Release, Apr. 2, 2021, "Tax Fugitive Sentenced and Fined"
- Shu-Yi Oei, "The Offshore Tax Enforcement Dragnet", 67 Emory L. J. 655 (2018)
- Jeff Chaney, "FBAR and Tax Crime Statutes of Limitations – Suspended When Overseas?" (June 22, 2015)
- IRS Office of Chief Council Memorandum, "Collection Procedures for Assets Located Outside the United States" (Feb. 24, 2022)
- IRS attempts to levy upon or seize assets abroad, or mandate their remittance to the USA:
- Virginia La Torre Jeker, "Foreign Assets — How Can the IRS Enforce Tax Collection Overseas? (Nov. 2022), Part I, Part II
- Golding & Golding, "The IRS Can Enforce Collection of Your Foreign Assets Abroad" (undated)
5.4. Controlled Foreign Corporations (CFC)
- 26 U.S. Code § 957, Controlled foreign corporations
- 26 CFR § 1.957-1, Definition of controlled foreign corporation
- 26 C.F.R. § 1.6038–2, Information returns required of United States persons with respect to annual accounting periods of certain foreign corporations beginning after December 31, 1962
- 26 CFR § 301.7701-2 - Business entities; definitions
- Internal Revenue Manual (IRM), Entity Classification
- Accounting Standards Codification (ASC) – ASC 740, Controlled foreign corporations
- IRS Notice 2004-68, "Classification of Certain Foreign Entities"
- IRS Knowledge Base, "Overview of Entity Classification Regulations (a/k/a Check-the-Box)" and "Determination of U.S. Shareholder and CFC Status"
- Compare with UK classification of foreign entities:
- Anson v. HMRC,  UKSC 44
- Revenue and Customs Brief 15 (2015): HMRC response to the Supreme Court decision in George Anson v HMRC (2015) UKSC 44 — Another copy
- Norton Rose, "UK taxation of US LLCs – HMRC responds to Supreme Court decision in Anson"
- Saffery Champness, "The UK’s tax treatment of LLCs following the Anson case"
- Memec plc v Comm'rs of Inland Revenue,  BTC 251,  STC 754 (Archived copy) (Transparency of partnership - Taxpayer entering into German 'silent partnership' agreement with German subsidiary holding company - Whether taxpayer's share of profits in silent partnership a dividend)
- IRM 4.61.7 Controlled Foreign Corporations (Examining process) (via archive.org: deleted from IRS site)
- The Balance, Small Business, "What Is a Controlled Foreign Corporation?"
- International Tax Blog, "What is Subchapter F income?" (2011)
- BDO: Tax Cuts and Jobs Act of 2017: "Impact: Federal tax reform Repatriation Transition Tax & "GILTI" Tax"
- Congdon v. U.S., 2011 WL 3880524 (E.D. Tex. 2011) — Docket
- See Dewees v. U.S. above
- Flume v. Comm'r, T.C. Memo. 2017-21, 2017 WL 394541 (Taxpayer liable for civil penalties for failing to report his ownership interests in Mexican corporations: 5471 issue) — Comment, Justin Hughes, "Tax Court Rejects Taxpayer’s Reasonable Cause Argument Regarding Automatic Penalties from Failure to File Forms 5471" (Archived copy) (See also FBAR case above, same taxpayer)
- Kelly v. Comm'r, T.C. Memo 2021-76, 2021 WL 2652708 — Appeal filed, 9th Cir., Mar. 8, 2023, Case 23-70040 — Docket (mediation ordered)
- Heydemann v. U.S., 2008 WL 2502188 (D. Md. 2008) (Bankruptcy court confirmation of nondischargeability of $40,000 in IRS penalties for failure to file Form 5471 affirmed)
- U.S. v. Wheaton, 791 F.Supp. 103 (D. N.J. 1992) (Order to produce documents)
Wheaton v. U.S., 888 F.Supp. 622 (D. N.J. 1992) (Form 5471; undeclared foreign company income)
- Attribution of ownership rules for Controlled Foreign Corporation — Explanatory charts
5.5. Passive Foreign Investment Companies (PFIC)
U.S. shareholders of foreign corporations are also subject to the passive foreign investment company (PFIC) rules, which tax U.S. shareholders who escape CFC taxation because they own less than 10% of a foreign corporation. Unlike the CFC rules, the threshold in determining PFIC ownership is based not on stock ownership or value, but rather on the nature of the income or assets of the particular foreign corporation.
- PFIC statute: 26 U.S. Code § 1297.
- Comment: Monica Gianni, "PFICs Gone Wild!", 29 Akron Tax J. 29 (2014), Charles I. Kingson, "Revise the Rules for Passive Income and Passive Assets", Tax Analysts (2008).
- John Richardson, "Form 8621 and Form 5471 are required even if the tax return is NOT!" (April 2017).
- Roger Healy, "Americans Should Avoid Owning Shares in a Non-U.S. Mutual Fund" (June 5, 2023)
- Claiming the Indirect Credit for Foreign Taxes of a PFIC (2016) (Archived copy)
- Haoshen Zhong, "PFIC Look-through for Foreign Pensions" (June 1, 2016).
- Haoshen Zhong, "Lookthrough Rules for Mutual Funds Held in Foreign Pensions in Treaty Countries" (July 12, 2016).
- KPMG, "IRS Issues Final PFIC Regulations" (Jan. 13, 2017) (Archived copy) ("Treaty-based reporting exception for PFIC stock held through a foreign pension fund is expanded to PFICs held through all foreign pension funds regardless of entity classification").
- Submission on PFIC tax rules relating to American citizens overseas, presented to the Senate Finance Committee, Feb. 2014.
- Stephanie Ray, "Getting Caught Between the Borders: The Proposed Exemption of the Canadian Mutual Fund from the Passive Foreign Investment Company Rules", 37 Fordham Int'l L. J. 822 (2014).
- Phil Hodgen, "The Stealth Exit Tax, PFIC-Style" (2015)
- Stephanie Ray, "Getting Caught Between the Borders: The Proposed Exemption of the Canadian Mutual Fund from the Passive Foreign Investment Company Rules"
- Alan S. Lederman & Bobbe Hirsh, "The American Assault on Tax Havens-Status Report", 44 Int'l Law.1141, 1142 (2010) (stating that the IRS can create exceptions to "passive foreign investment company (PFIC) and controlled foreign corporation stockownership reporting"). (cited, 35 NW. J. Int'l L. & Bus. 139)
- Reuven S. Avi-Yonah, "The Silver Lining: The International Tax Provisions of the American Jobs Creation Act - A Reconsideration" (2005)
- Committee on Foreign Activities of U.S. Taxpayers, Foreign Activities of U.S. Taxpayers, 51 Tax Lawyer 1005 (1998)
- Harvey P. Dale and Nancy H. Kaufman "Passive Foreign Investment Companies", explanation of relevant provisions of the Tax Reform Act of 1986.
5.6. Enforcement and Partial Abatement Matters
"In FY 2008 as part of its continuing efforts to improve its post-judgment collection efforts, the Division, created a Financial Litigation Unit, which is staffed by three-to-five attorneys (some on details from other civil trial sections) and four paralegals that work under the supervision of the Office of Review. [sic].
"One particularly notable collection case involved a suit for the failure to file Reports of Foreign Bank and Financial Accounts ('FBAR'). These penalties help prevent the use of offshore accounts for tax evasion. Accordingly, ensuring that the penalties are collected is an important (and growing) part of the Division’s caseload. For example, in United States v. Dominique Colliot (W.D. Tex.), the Tax Division filed suit to obtain a judgment for FBAR penalties in the amount of $917,446 plus a 10% statutory surcharge for debt collection in December 2016. After filing suit, the court issued a pre-judgment writ of garnishment to UBS Financial Services, Inc., ordered Colliot to instruct UBS to liquidate assets as necessary to generate $1,126,016 in cash, and ordered UBS to segregate and hold those funds until further instruction from the court."
— United States Department of Justice Tax Division, FY 2018 Congressional Budget
At least three "voluntary" projects were undertaken by the IRS, the Offshore Voluntary Disclosure Program (OVDP), OVDI and the Streamlined Filing Compliance Procedure. "Quiet disclosure" by submission of amended returns and late forms and declarations is sometimes discussed as an alternative (2014), but is not without risk. Under certain circumstances delinquent FBARs can be filed without penalty. See Sean M. Golding, Quiet Disclosure or Streamlined (Update), HG.org (2020?) ("knowingly submitting a Quiet Disclosure is a form of tax fraud"). (Ed note; Facts matter, especially place, timing and amount, citizenship status, potential penalties. Law firms specialized in compliance issues stress the anomaly that once a noncompliant taxpayer has declared overseas assets and income through amended returns, continued noncompliance is "willful'', therefore inviting prosecution. This may or may not be borne out by the statistics. The cases below at "Significant Recent Cases" are those that were neither administratively resolved nor ignored by the IRS: data are unknown beyond figures for 2009 and 2010 cited by Anthony Parent in "Quiet/Soft Disclosure: IRS Crackdown Audits And Penalties" (May 31, 2013, archived). Parent's numbers come from GAO report 13-318 entitled "IRS Has Collected Billions of Dollars, but May be Missing Continued Evasion" (2013).
A U.S.-resident delinquent taxpayer has virtually no ready personal or property defenses and can be subjected to devastating penalties (150% FBAR penalty in the Zwerner case below) and tax liens attaching to all property. Asset protection devices are severely limited once the tax debtor has unconditional title to assets; ERISA (pensions), Social Security (15%), inheritance and trusts other than fully discretionary (Archived copy) potential payments, tenancy by the entireties, See generally, Bryan D. Camp, "Protecting Trust Assets from the Federal Tax Lien", 1 Est. Planning & Comm. Prop. L. J. 295 (2009). FBAR penalties cannot be discharged in bankruptcy (see below). Some but not all the IRS compromise initiatives allow for penalty reductions; sometimes the taxpayer must "opt out" of scheduled penalties and take the risk of unfavorable adjustment or indeed prosecution. As with Offers in Compromise and extrastatutory concessions, a result can include conditions that later cannot be met, or proclivities of particular IRS employees and risk of an later abrupt change in position by the IRS: Grant v. United States, 289 F. Supp. 2d 1361 (S.D. Fla. 2003) (see links to briefs and case documents at foot of linked case report) (“Sometime in 1999, Agent Smith passed away, and Calvin Byrd was assigned as the new IRS agent in charge of the Grants’ case. … Agent Byrd did not like the deal his predecessor had made with the Grants.”). Also, Ted Afield, "IRS Can File a Proof of Claim in Bankruptcy Court for the Full Amount of Tax Liability Even After an Accepted Offer in Compromise", Procedurally Taxing Blog, June 13, 2019.
Those with overseas assets connected with entities and persons on the IRS list of "Foreign Financial Institutions or Facilitators" are subject to higher penalties: 50% of highest balance (including assets not connected with a listed institution of facilitator) instead of 27.5%: Congressional Research Service, "Reporting Foreign Financial Assets Under Titles 26 and 31: FATCA and FBAR" (Mar. 27, 2014), U.S. v. Singenberger and accompanying text and links (below), Robert W. Wood, "IRS Still Hunts Offshore Accounts As More Foreign Banks Sign Deals With U.S.", Forbes, Jan. 26, 2016. Comments, Jack Townsend, 'Report of Government Comments on FBAR Penalties at ABA Tax Section Meeting" (2/1/13) and "Report on Webinar on Opting Out and Litigating FBAR Penalties" (1/17/13; with Caveat Update on 2/1/13).
Willfulness: The measure of penalty depends on judicial attribution of willfulness on the part of the FBAR delinquent. It is increasingly difficult for those accused of FBAR violations and crimes to defend on ground of ignorance and accountants' negligence: indeed that is one of the reasons for IRS publicity in its prosecutions. Thomson Reuters Checkpoint explains: "In Program Manager Technical Advice, IRS has set out the definition of willfulness, and the standard of proof for establishing willfulness, for purposes of the penalty for willful violation of the requirements of the Report of Foreign Bank and Financial Accounts (FBAR). (Program Manager Technical Advice 2018-013)"
- The Taxpayer Advocate has resisted: "Legislative Recommendation #35 Modify the Definition of 'Willful' for Purposes of Finding FBAR Violations and Reduce the Maximum Penalty Amounts"
- Golding & Golding: “FBAR Willful Penalty: How is Willfulness Defined?” – Willful penalty guide
- Robert S. Horwitz: "FBAR Willful Cases Are Similar to Groundhog Day" (May 28, 2021)
- Matthew Roberts, "The Evolving Standard of “Willfulness” in FBAR Cases: Where are We Now?" (Feb.14, 2022)
- Hale E. Sheppard, "Government Wins Fourth Straight FBAR Penalty Case: Analyzing Bohanec and the Evolution of ‘Willfulness’", J. Taxation (Mar. 2017)
As to discharge in bankruptcy, see IRM Part 5 and United States v. Wilson, No. 3:15-cv-01448 (N.D. Cal. Jan. 21, 2016) Withdrawal of opinion — Appellant’s brief — Stipulation of dismissal — Comment (prior to withdrawal of opinion over jurisdictional question), “District Court Examines Bankruptcy Discharge Timing Rule For Tax Penalties”, Forbes, Jan. 26, 2016.
- Hawkins v. Franchise Tax Board, 769 F.3d 662 (9th Cir. 2014) (Question of whether debtor "willfully attempted in any manner to evade or defeat such tax" by lavish pre-bankruptcy spending) — Comment Matthew Gensburg, "Circuit Survey of Section 523(a)(1)(C) Willful Attempt to Evade or Defeat Tax Liability", Nov. 22, 2022 (Archived copy) — Comment by Bryan Camp, "Taking Issue With the Ninth Circuit and Lavar Taylor’s View of A Willful Attempt to Evade or Defeat Tax" (citing approvingly contrary position of 3rd, 5th, 6th and 7th Circuits).
- U.S. v. Gandy, 2016 Bankr. LEXIS 3907 (Bankr. W.D. Tex. 2016), below
U.K. practice in initiating bankruptcy proceedings against tax debtors is explained by TaxAid (a charity assisting persons on low income).
A discharge in bankruptcy rendered by a foreign court will bar suit for collection in that foreign jurisdiction but not necessarily elsewhere unless the creditor has appeared or filed proof of claim or debt. "Conflict of Laws in the Discharge of Debts in Bankruptcy", 5 Int'l Insolv. Rev. 1 (1996); The Government of the Commonwealth of the Northern Mariana Islands v Millard (Cayman Islands unreported, 15 April 2014; see below for 2012 S.D. N.Y. case between the same parties) (discussion). The effect of an in-rem order of a U.S. court or of an injunction in conflict with a foreign proceeding is unpredictable. Two examples: Felixstowe Dock And Railway Co v US Lines Inc.,  1 QB 360 (Chapter 11 proceeding conflicting with English Mareva (asset freezing) injunction) and Federal Trade Comm'n v. Affordable Media, 179 F.3d 1228 (1999) (Cook Islands trust provisions ignored; debtors held in contempt).
A comparative study of Canadian and American treatment in bankruptcy of tax debts appears in Colin Jackson, Settlement, Compromise, and Forgiveness in Canadian Income Tax Law (with references). See pp. 103-04 regarding conditions under which Canadian tax debts may be dischargeable.
- In In re Morgan, 1999 Man. D. J. 185, (1999) 88 A.C.W.S. (3d) 964. an undischarged bankrupt who had moved from Canada to the United States was pursued in 1997 by the IRS for Canadian tax debts that Revenue Canada (now Canada Customs and Revenue Agency) had claimed in the 1994 Canadian bankruptcy. The reciprocal collection arrangement operated forced the debtor to return to the Canadian bankruptcy court which, taking account of his increased earnings capacity, fixed Can.$100,000 (approximately half the tax debt exclusive of interest and penalties) as the amount to be paid over 60 months as condition to the grant of a discharge.
- Chua v. Minister of National Revenue, Federal Court of Canada, Docket T-1216-99, Sept. 12, 2000, dealt more specifically with the working of the treaty provision in relation to Canadian collection of tax claimed by the Internal Revenue Service. The judgment in that case held inconsistent with Subsection 15(1) of the Canadian Charter of Rights and Freedoms retroactive aspects of the Protocol's mutual collection provisions, finding that the applicant, not a Canadian citizen when her U.S. tax liability arose, "is now vulnerable to breaches of procedural and substantive justice in respect of this escalating IRS claim".
Oblique reference to the bar on enforcement of foreign claims against a local national was made in
- United States v. Van der Horst, 270 F. Supp. 365 (D. Del. 1967) mentioned above.
By analogy, the conflicting outcomes in Canadian bankruptcies involving U.S. student loans make uncertain the terms under which U.S. tax debts might be discharged in a Canadian bankruptcy.
Unlike some other penalties, and subject to timing, FBAR penalties may not be discharged in bankruptcy:
- Collier on Bankruptcy Taxation ¶ TX3.07
- 11 U.S.C. § 523(a)(7)
- Robert Horwitz, “Litigating the FBAR Penalty in District Court and the Court of Federal Claims” (July 2017)
- United States v. Bussell, 9th Cir. No. 16-55272 (2017) — Comment, Jack Townsend, "District Court Imposes FBAR Willful Penalty, Holding Reckless Conduct is Willful and Applying Preponderance Standard (12/10/16)" — "Taxpayer was liable for million dollar FBAR penalty", Thomson Reuters Tax & Accounting News, Nov. 2, 2017
- Jack Townsend, "Sealed Indictments - A Primer (7/11/12; revised 6/29/16)" ("Sealed indictments impair the fundamental imperative of a statute of limitations for a crime, a concept that most would consider includes both the actual indictment and notice to the defendant.")
- Bush v. United States, Bankr. S.D. Ind. 14-09053-JMC-7A — Comment, Procedurally Taxing Blog, “Discharging the Fraud Penalty in Bankruptcy”, (June 2016).
- United States v. Williams, 4th Cir. No. 10-2230 (2012)
- Robert W. Wood, "FBAR Penalties Just Got Even Worse", Forbes, July 22, 2012
- Hale E. Sheppard, "Third Time's the Charm: Government Finally Collects ‘Willful’ FBAR Penalty in Williams" (2012)
Contempt proceedings are readily available to the Government where a delinquent taxpayer has hidden, or kept, assets abroad, as in an "asset protection trust". FTC v. Affordable Media LLC and Anderson, 179 F.3d 1228 (9th Cir. 1999), discussed by Jay Adkisson (Archived copy), is just one example. As the Marc Rich litigation (and eventual pardon by President Clinton) demonstrated, enforcement is less certain where the tax miscreant remains abroad:
- Marc Rich & Co. A.G. v. United States (In re Marc Rich & Co. A.G.), 739 F.2d 834 (2d Cir. 1984) (subpoena). The Clinton pardon did not affect Rich's state tax liability but he never returned to the U.S. in any case.
The Marc Rich case was special since it also involved the Trading with the Enemy Act and "sources and methods" of intelligence procurement and intercepts now known to have involved the NSA and GCHQ. Upon his death his surviving daughters liquidated his assets but whether on behalf of charities or whether the IRS and the New York State Department of Taxation and Finance were able to assert claims is unknown. He was resident in Switzerland but the law applicable to his succession is not obvious, nor the nature of entities and trusts that he may have used.
In the modern age of mass data collection there are bound to be false positives. The false positive rate in selection for audit generally rose to 66% in 2017. See Taxpayer Advocate, MSP #5, "False Positive Rates" (2018, Archived copy) and Transcript Records Access Clearinghouse, "IRS Audits Few Millionaires But Targeted Many Low-Income Families in FY 2022" (Archived copy). Self-assessment systems depend on publicized prosecution of celebrity and other notable cases pour encourager les autres. The fact remains that a principal subject of this article — American citizens and dual nationals abroad — remain disadvantaged by the U.S. principle of citizenship taxation with partial relief by way of the foreign earned income exemption and credit for (some) foreign taxes. Traps for the unwary and double taxation persist due to temporal and characterization conflicts and legislative override of treaty provisions discussed elsewhere in this essay. The Tax Cuts and Jobs Act of 2017 created new anomalies on top of those generated by foreign-government reliance on non-deductible or -creditable (for U.S. tax purposes) of payroll, social, spending (sales tax, VAT) and wealth taxes: Rev. Rul. 76-536 (Irish wealth tax) citing Biddle v. Commissioner, 302 U.S. 573 (1938), Rev. Rul. 70-464 (Swiss wealth tax) citing Lynch v. Turrish, 247 U.S. 221 (1918); see RIA ¶ O-4233 for rulings and decisions on specific foreign taxes. For an argument as between characterization and timing in relation to a Canadian statute of limitations and method of accounting, see Coulter Electronics, Inc. v. C.I.R., T.C. Memo 1990-186, aff'd without published opinion, 943 F.2d 1318 (11th Cir. 1991).
Statute of limitations issues are dealt with, in tax matters, at IRM 18.104.22.168.4. Note conditions leading to an extended Assessment Statute Expiration Date at IRM 22.214.171.124.4. FBAR (civil penalties, six years, criminal five years from the date of the violation) and recordkeeping ("section 103.32 does not require records to be maintained for more than five years") limitations are at IRM 126.96.36.199. There is a particularly anomalous status of limitations period for those engaged in IRS amnesty programs: Jack Townsend has written on this: "Protecting the Refund Statute of Limitations for those in OVDI" (1/4/12)
Clients of Mossack Fonseca and other law firms specializing in offshore entities, trusts and banking were not necessarily in defiance of law: corporate offshore earnings may be legally parked in tax havens. But the taint is there even with false positives, and individuals have been audited and where appropriate charged after their data were turned over by foreign banks or revealed by the Panama Papers, the Paradise Papers and the LuxLeaks (all publicized by the International Consortium of Investigative Journalists). The Paradise Papers have been cited by Australian tax authorities as evidence of the "commoditization" of tax avoidance. Other data dumps include the Swiss Leaks (HSBC files) and the Mauritius Leaks (Indian Express: Conyers Dill & Pearman law firm; Archived copy).
Those who have truly no U.S. connection other than accidental citizenship: no assets, income or heirs in the United States and, if they have offspring those heirs are not U.S. citizens, may have an optimum strategy quite different from others who do have such personal and financial connections. There is at least a conceptual risk that any substantial tax debtor who (his or her U.S. passport having (or not having) been cancelled due to tax debts and accrued interest and penalties exceeding $50,000 or who having renounced citizenship has not complied with relevant expatriation tax obligations) visits the United States may be faced with the rare writ Ne Exeat Republica (IRM 188.8.131.52 (01-07-2016)) .
- United States v. Barrett, Case 10-cv-02130, 2014 U.S. Dist. LEXIS 10888 (D. Colo. 2014) District Court order Docket and case documents from RECAP & Free Law Project. Internal Revenue Manual 5.21.3, — Comment, Jack Townsend, "Writ Ne Exeat Republica to Restrain from Foreign Travel as Tax Collection Tool" (2/11/14)
- United States v. Lipper, 1981 WL 1762, 1981 U.S. Dist. LEXIS 11766 (N.D. Cal. 1981) ("while District Courts authority to issue writs of ne exeat republica is clearly without question, the power is seldom exercised.") In criminal cases a sealed indictment will result in the defendant's arrest if and when that person is found in the United States: thus, Marcus Hutchins, arrested at McCarran International Airport in Las Vegas en route home to Britain from the DefCon Conference in August 2007 — Sealed Indictment — Plea Agreement (conspiracy to transmit malware, 18 U.S.C. § 1030(a)(5)(A), (c)(4)(B)(i), (c)(4)(A)(i)(VI)
- United States v. Maryans, 803 F.Supp. 1378 (N.D. Ind. 1992)
- United States v. Mathewson, 839 F. Supp. 857 (S.D. Fla. 1993)
- Jones v. Mnuchin, 529 F. Supp. 3d 1370 (S.D. Ga. 2021) (comparing passport revocation to writ ne exeat republica)
- Maehr v. United States Dep't of State, 5 F.4th 1100 (10th Cir. 2021) ("Writs of ne exeat differ significantly from FAST Act passport revocations in three ways")
- U.S. v. Shaheen, 445 F.2d 6 (7th Cir. 1971) ("a ne exeat writ issued on the basis of an ex parte application can authorize no more than a brief period of initial restraint during which the Government has the burden of proving, in an evidentiary hearing … The Government's theory is that taxpayer's presence is required to enable the court effectively to enforce an order requiring him to repatriate assets now located in Europe. … The order denying the motion to quash the writ ne exeat republica is reversed.")
More common (now) is the revocation or denial of passport facilities under 22 U.S.C. § 2714a and the hard interrogation of returning nonresident citizens: Sydney Watson, reported to the FBI by Comedy Central as a "threat"; her Australian colleague Ali Yemeni refused entry and deported.
Many noncitizens are, in principle, obliged to obtain a "sailing permit" prior to departing the United States, and to pay accrued income tax at that time: IRS, "Departing Alien Clearance (Sailing Permit)". This obligation, it seems, was better known and understood in the days when the Smith Act required annual registration of aliens at a Post Office. A recent poll of tax preparers and tax lawyers showed few who were aware of the sailing permit provisions, although one respondent remarked that it was yet another profit center for his firm.
Extradition has been infrequently available for tax crimes in part as a result of historical practice and policy, and in part because of hesitation on the part of tax authorities to expend the diplomatic credit required except in egregious cases. Solicitation of expulsion or deportation may be an alternative in some cases. But tax evasion may be assimilated to money laundering, common-law fraud or wire fraud with greater likelihood of foreign government cooperation, (U.S. v. Yusuf, 536 F.3d 178 (3rd Cir. 2008): false tax return as mail fraud, money laundering). Some new bilateral arrangements and changes of law in certain foreign countries have increased the number of extraditions for tax crimes. It remains true that extradition is a complex and expensive procedure that consumes diplomatic goodwill and so is reserved for significant cases.
- And see: John Richardson, "Extradition Is One Way That Changes In Another Country's Tax Laws May Change Your Tax Relationship With The US", Oct. 18, 2022
- IRS Press Release, "IRS-CI Mexico City initiative locates 79 criminal fugitives in first year", Oct. 6, 2022
- David Spencer, "Cross-Border Tax Evasion and Bretton Woods II (Part 5)", J. of Int'l Taxation, v. 20 (2009) or white collar crime, computer hacking or terrorism. (U.S. Embassy FAQ (archived) — Heritage Foundation comment on draft treaty). Conceptually, extradition might be sought for perjury. Congressional Research Service, Extradition To and From the United States: Overview of the Law and Recent Treaties (Aug. 2007)
- Bruce Zagaris, U.S. Efforts to Extradite Persons for Tax Offenses, 25 Loy. L.A. Int'l & Comp. L. Rev. 653 (2003)
- History of extradition: J. Mervyn Jones, Modern Developments in the Law of Extradition (1941).
- Wade A. Buser, "The Jaffe Case and the Use of International Kidnapping as an Alternative to Extradition", 14 Ga. J. Int’l & Comp. L. 357 (1984) concerning the abduction of Sidney L. Jaffe in Canada and his forced transportation to Florida. See Jaffe v. Grant and Jaffe v. Boyles, with commentary, above.
Extradition cases which have made news in the past have been major thefts from tax authorities: "carousel" VAT fraud, identity theft and fraudulent refunds, and tax cases involving very large sums of money taken from the tax authorities (thus: Ian Leaf), as compared with failure to pay tax (Marc Rich). Other cases:
- U.S. v. Ktistakis, DOJ Press Release, Indictment of Lucas N. Ktistakis and Kathryn L. Kristakis for tax fraud for years 1995, 1996, 1997, Jan. 23, 2003 — Michael Kunzelman, AP News, Jan. 15, 2014: "Greek shipping magnate ordered to pay $1.5M to IRS", extradited from Germany after having lived in Greece
- U.S. v. McPherson, D. Ore. Case 20-mj-00260 — Docket — Complaint — DOJ Press Release, "Fugitive Deported to the United States for Sentencing After More Than 21 Years Fled in 2000 After Being Convicted on Tax Charges", May 4, 2022 (Deportation from Costa Rica in lieu of extradition)
- U.S. v. Masefied, 2005 WL 236443 (S.D. N.Y.) Channel Islands tax fraud conspiracy. ("Presently before the Court is Defendant Richard Masefield's ('Defendant') motion to dismiss the two-count indictment against him on the grounds that the prosecution contravenes the principle of specialty governing Defendant's extradition from Australia to the United States.")
- North Mariana Islands v. Millard, S.D.N.Y. 2011, Case 11-mc-99, Docket — Order of dismissal — Memo of law to vacate (Main – 157-1 – 157 -2 – 157-3 – 157 -4 – 157-5) — Affirmed, 2nd Cir. Case 12-1857, Judgment — Robert Frank, "After 20 Years, Missing CEO Reappears", WSJ, Sept 10, 2011 (Archived copy) — Nina Terrero, "Tech Mogul Traveled the World, a Step Ahead of Taxman", ABC News, Sept. 12, 2011
- U.S. v. Oleg Tinkov, N.D. Cal., Case 19-cr-489 — Docket — Indictment — DOJ Press Release, "Founder of Russian Bank Pleads Guilty to Tax Fraud, Admits to Concealing More Than $1 Billion in Assets when Renouncing U.S. Citizenship and Agrees to Pay More Than $500 Million Penalty", Oct. 1, 2021. Tinkov was extradited from the United Kingdom — Francesca Ebel, Leo Sands, "Banking tycoon renounces citizenship of 'fascist' Russia over Ukraine war", Washington Post, Nov. 1, 2022 (Archived copy)
- U.S. v. Raoul Weil, S.D. Fla, Case 08-cr-60832 (former UBS banker) Docket — Indictment — Judgment of acquittal — Valentina Accardo, Reuters, Nov. 28, 2013, "Exclusive: Ex-UBS banker Weil agrees to be extradited to U.S."
Exceptions such as VAT fraud, identity theft and fraudulent refunds are mentioned below. Customs fraud is another exception to what remains of the Revenue Rule:
- Pasquantino v. United States, 544 U.S. 349 (2005).
Extradition cases have addressed narcotics smuggling.
- Colin Hugh Martin v. Canada, 2017 BCCA 220 (B.C. 2017), Sup. Ct. app. dism'd, Case 37614 (2017) — Comment, Lachlan Labere, "Accused B.C. drug smuggler to be extradited; Supreme Court of Canada upholds extradition order for accused Shuswap drug smuggler", Trail Times, Dec. 15, 2017
- Alexis Vlachos and Annette Wexler, D. Vt. Case 15-cr-00006, Vlachos Indictment — Superseding Indictment (Sealed plea agreement filed Dec. 29, 2017). — DOJ Press Release, "Quebec Man Extradited to Vermont on Firearms Smuggling Charges" (weapons smuggled via the Haskell Free Library and Opera House, which straddles the frontier)
Some important tax and white-collar-crime extradition cases are:
- Gideon Misulovin (fuel excise tax fraud: Arrest warrant — Extradition) — Comment, Jack Townsend, "Tax Crimes Fugitive for Almost 20 Years Extradited to US" (7/23/15)
- U.S. v. Adrian Baron (below)
- Lauri Love ruling "'sets precedent' for trying hacking suspects in UK", "Rights groups and lawyers for 33-year-old welcome landmark judgment against extradition to US"
- NatWest Three given three-year jail sentences for Enron fraud
- U.S. v. Struckman, 611 F.3d 560 (9th Cir. 2010) — M. Cherif Bassiouni, International Extradition; United States Law and Practice, 6th ed (2014), p. 237: "There are several examples of the United States working with foreign governments to gain the surrender of individuals to the United States through foreign immigration processes." citing Struckman.
- Larry Williams, securities trader and "radical tax protester", resisted extradition from Australia to the USA for tax evasion, and eventually settled with a misdemeanor conviction — T.C. Memo 2022-7 — NPR Planet Money, Mar. 4, 1016, "Tax Protester Takes Extreme Action To Avoid Paying"
- C.I.R. v. Shapiro, 424 U.S. 614 (1976) ("Citizen of Israel brought suit to enjoin his extradition or, alternatively, to enjoin jeopardy assessment made against him by internal revenue commissioner. The District Court for the District of Columbia, dismissed the complaint on the ground of the Anti-Injunction Act")
Bankruptcy fraud has been an issue in a number of cases, including Bussell, below. See also: In re Tucker (A Bankrupt),  Ch. 148, LAWTEL, July 11, 1988 (Isle of Man, May 16, 1987) (applying Bankruptcy Act 1914; taking evidence in support of English proceeding; and David Graham, "Tucker and the Taxman" in Ian F. Fletcher, ed., Cross-Border Insolvency: Comparative Dimensions, pp. 205-15 (1990)); Bullen v. Her Majesty's Government of the United Kingdom, 553 So.2d 1344 (Fla. App. 4th Dist. 1989), petition for review denied, 567 So.2d 434 (Sup. Ct. Fla. 1990), enforcing vesting of Florida property in English receiver in Regina v. Garner,  1 W.L.R. 73 Cf. Ex parte Bettle (In re "The Land Transfer Act, 1885"), (1895) 14 N.Z.L.R. 129. Ashurst v. Pollard,  2 W.L.R. 722,  2 All E.R. 772 (Ch.D.) (Portuguese real property; court's power to compel English debtor and spouse to execute transfer documents in favor of debtor's bankruptcy trustee); In re International Administrative Services, Inc., 211 B.R. 88 (Bankr. M.D. Fla. 1997). The IRS is less likely to make a tax debtor involuntarily bankrupt because U.S. bankruptcy law is less friendly to creditor-initiated bankruptcy than are the laws of, say, England. Theophile v. Solicitor-General,  A.C. 186, 201 (an individual is deemed still to be "doing business" until all debts, including taxes, are paid). Nor is the IRS likely any longer appear in its own right in a foreign proceeding lest the foreign court make an anomalous ruling, one that could in principle invoke a counterclaim and deem the U.S. Government's sovereign immunity to have been waived. Government of the United States v. Harden,  S.C.R. 366 (applying the so-called Revenue Rule, under the law and tax treaty as they then stood).
See also this writer's unpublished article, "Conflicts in Cross-border Enforcement of Tax Claims" (2007) and, generally, Prof. Jack Townsend's Federal Tax Crimes Blog, Robert W. Wood’s regular contributions to Forbes Magazine, Kenneth Rijock's Financial Crime Blog on money laundering and financial crime, Prof. Allison Christians' Tax, Society & Culture Blog and David Bentley, "Fingering White Collars", Chatham House, The World Today, v. 63, Jan. 2007.
5.7. FATCA, Know Your Customer (KYC), Anti-Money Laundering (AML) and Foreign Financial Institutions (FFIs): Denial of Financial Services Abroad to "U.S. Persons"
- Dept. of Treasury FATCA Resource Center; Intergovernmental agreements
- IRS Revised Guidance Related to Obtaining and Reporting Taxpayer Identification Numbers and Dates of Birth by Financial Institutions (2017)
- Deloitte, Treasury and IRS issued guidance on FATCA Foreign Account Tax Compliance Act, Links to selected IRS publications through 2016
- IRS FAQ, "FATCA compliance"
- STEP, Society of Trust and Estate Practitioners: "Failure to obtain tax ID number may not be 'serious non-compliance', says US IRS", Oct. 24, 2019. (However, the links on that page (specifically the FAQ above), and on other reports of IRS forbearance (as of December 2019), do not support the statement.)
- Thun Financial, "What is FATCA (Foreign Account Tax Compliance Act)? What do American Investors Need to Know?" (2017)
- Democrats Abroad: "FATCA: A Banking Burden Abroad" (2016)
- "Isa providers refuse to open accounts for British-Americans", Daily Telegraph, May 29, 2015 (ISAs are similar to Roth IRAs in that taxed income can be saved and accumulate earnings tax-free, but with no withdrawal age restriction. But unlike U.K. SIPPs and U.S. Roth IRAs they do not qualify as pensions under the tax treaty.
- Agreement between USA and Swiss Confederation on the request for information from the Internal Revenue Service of the United States of America regarding UBS AG, a corporation established under the laws of the Swiss Confederation, Aug. 19, 2009
- Swissinfo, Dec. 27, 2016: "Swiss abroad see red over bank account treatment".
- Der Spiegel (English), Dec. 14, 2011: "European Banks Stop Serving American Customers".
- Alexander Baron von Engelhardt, Rechtsanwalt: "FATCA and What it Practically means for your German Bank Relationship from the German Legal Perspective" (Archived copy).
- Money Laundering Watch
- Prem Sikka, "The accountants’ laundromat: How Britain is still washing dirty money"
- HMRC, Report suspicious activity that may be linked to money laundering
- UK Anti-Money Laundering Guidance for the Accountancy Sector
- HMRC International Exchange of Information Manual, Background: FATCA (regularly updated)
- HMRC, Tackling tax evasion: legislation and guidance for a corporate offence of failure to prevent the criminal facilitation of tax evasion
- Ashurst, Corporate criminal offences for failure to prevent facilitation of tax evasion (2017)
- UK Criminal Finances Act 2017
- IRS Office of Chief Counsel, Criminal Tax Division, Tax Crimes Handbook
- Internal Revenue Manual: ¶ 9.5.5 "Money Laundering and Currency Crimes"
- DOJ Money Laundering Overview
- "The CPA’s Role in Fighting Money Laundering", J. of Accountancy (2001)
- Financial Action Task Force, Third mutual evaluation report on anti-money laundering and combating the financing of terrorism
- SEC: A Resource Guide to the US Foreign Corrupt Practices Act
- FFIEC: Bank Secrecy Act, Anti-Money Laundering, and Office of Foreign Assets Control
- ARCInfo, "Fraude et blanchiment: UBS risque une amende de plus de 5 milliards en France" (Swiss newspaper article, Oct. 8, 2018 (in French)
- European Commission: Access to bank accounts: EU rules allow consumers to open and change bank accounts anywhere in the EU
Selected Money laundering cases and materials, including FBAR violations:
- Cierco v. Lew, 190 F.Supp. 3d 16 (D.D.C. 2016) ("Relying on authority provided by the 2001 USA PATRIOT Act, FinCEN in early 2015 started a process that, had it been completed, would have effectively required all U.S. banks to stop transacting with [Andorran bank].")
- U.S. v. Ramses Owens, S.D. N.Y. Case 18-cr-693 — Docket — DOJ Press Release Dec. 2, 2018 (Panama Papers investigation)
- U.S. v. Glafira Rosales, S.D. N.Y. Case 13-518 — Docket — Indictment — Order of Restitution — Order of Forfeiture ($33 million & other) — DOJ Press Release, "Manhattan U.S. Attorney Charges Art Dealer With Hiding Millions Of Dollars In Income From Fraudulent Sales Of Artwork." Glafira Rosales Allegedly Hid From The IRS At Least $12.5 Million In Proceeds From Sales Of Artwork Purported To Be Painted By Famous Abstract Expressionists" and "Long Island Art Dealer Indicted For Massive Art Fraud, Money Laundering, And Tax Scheme. Glafira Rosales Charged With Knowingly Selling Fake Artworks Purportedly By Renowned Artists In $30 Million Scheme" (Knoedler art forgery prosecution) — Art News, Jul. 10, 2017, "Glafira Rosales Ordered to Pay $81 Million to Victims of the Knoedler Art-Fraud Scheme"
- FinCEN Case examples prior to 2015
- International Consortium of Investigative Journalists, "FinCEN Files: An ICIJ investigation reveals the role of global banks in industrial-scale money laundering – and the bloodshed and suffering that flow in its wake"
- Matthew Collin, "The hacker, the tax haven, and what $200 million in offshore deposits can tell us about the fight against illicit wealth", Brookings, May 5, 2021
- Tax Justice Network, "How much money is in tax havens?"
- Jamila Trindle, Catherine Traywick, "The No-Longer-So-Secret Swiss Bank Account". Foreign Policy, Feb. 26, 2014
- Nana Ama Safo, "Anti-Money-Laundering Rules — A Tax Authority’s New Best Friend", Forbes, June 4, 2023
- France: Absolute right, established in law, for anyone resident in France, and any French citizen resident abroad, to open a basic bank account (in French).
- Thun Financial: "Why US Brokerage Accounts of American Expats are Being Closed" (2017)
- Wall Street J.: "Fidelity Bans U.S. Investors Overseas from Buying Mutual Funds" (July 1, 2014)
- Association of Americans Resident Overseas (Paris): "Americans Residing Overseas are Denied Bank Accounts"
- Memorandum in Support of Ex Parte Petition [for John Doe Summons re VISA cards issued by offshore banks]; similarly on behalf of The Netherlands for Dutch residents using American Express cards
- Kluwer Tax Blog: "The Brave New World of AML and Tax Compliance Overlap for Tax Status Certification for FATCA, CRS and the EU. Why are so many compliance officers getting it wrong?" (2016)
- PWC: "FATCA and KYC: Similar yet different" (2012)
- Protiviti: "Guide to U.S. Anti-Money Laundering Requirements, Frequently Asked Questions, 6th ed." (2014)
6. Statutes of Limitation (Time Bars)
- 26 U.S. Code § 6501. Limitations on assessment and collection — Comment, Tax-Expatriation Blog, "IRS Creates 'International Practice Units' for their IRS Revenue Agents in International Tax Matters" (Dec. 28, 2015)
- 26 U.S.C § 6503(c) Collection after assessment: Suspension of running of period of limitation: Taxpayer outside United States
- 26 U.S. Code § 6531, Periods of limitation on criminal prosecutions (and tolling provisions)
- 26 U.S. Code § 6503. Suspension of running of period of limitation (incl. fraudulent returns)
- 18 U.S. Code § 3290. Fugitives from justice
- DOJ Criminal Tax Manual ¶ 7.00: Statute of Limitations; ¶ 5.04 Detention and Bail During the Course of Proceeding ("Prosecutors should be cautious about defendants who have overseas ties and/or assets. … There have been several noteworthy tax cases in which a defendant or target of an investigation fled.")
- IRM ¶ 25.6.1 Statute of Limitations Processes and Procedures
- 31 U.S. Code § 5314. Records and reports on foreign financial agency transactions
- 31 U.S. Code § 5321(b) Time Limitations for Assessments and Commencement of Civil Actions to recover a penalty.
- IRM ¶ 8.11.6 FBAR (Chapter 31, U.S. Code) penalties and limitations period
- Stephen J. Dunn, "To OVDP Or Not To OVDP: Compliance Options For Holders Of Foreign Accounts", Forbes, Jul 5, 2014 ("The OVDP requirements are punitive. The taxpayer must sign consents waiving the statute of limitations on assessment of an FBAR penalty and income tax, penalties, and interest with respect to the account…").
- Harrison v. IRS, 2021 WL 930266 (D. D.C. 2021) (Suit by taxpayer to recover funds paid to IRS by way of OVDP settlement)
- Flint v. U.S., 162 Fed.Cl. 91 (2022) (Executors of estate of deceased taxpayer filed suit against United States, claiming breach of contract and illegal exaction, and seeking $156,795.26 paid to IRS by taxpayer as miscellaneous offshore penalty. Dismissed for lack of jurisdiction.)
Case Law, Statute of Limitation
- U.S. v. Yip, 248 F. Supp.2d 970 (Dec. 26, 2015)
- U.S. v. Solomon, 570 F. Supp. 3d 1195 (S.D. Fla. 2021)
Fugitive disentitlement doctrine
- Molinaro v. New Jersey, 396 U.S. 365 (1970), limited by Ortega-Rodriguez v. United States, 507 U.S. 234 (1993);
- State v. Bell, 2000 N.D. 58, 608 N.W.2d 232 (2000) (discussion of states' practices)
- State v. Gaylor, 58 N.H. 230, 969 A.2d 333 (2009)
- U.S. v. Bakri, 2014 WL 1745659, 2014 U.S. Dist. LEXIS 60122 (E.D. Tenn.)
Transferee liability, fraudulent transfers cases
- U.S. v. Cody, 961 F.Supp. 220; 79 A.F.T.R.2d 97-1347 (S.D. Ind. 1997) ("Federal case law in favor of the government on this question [statute of limitations in fraudulent transfers] is 'overwhelming.'") (citing cases, with links)
- Hagaman v. Comm’r, 100 T.C. 180 (1993)
- Espinosa v. Comm’r, T.C.M. 2000-66
- Osherow v. Porras (In re Porras), 312 B.R. 81 (Bankr. W.D. Tex. 2004) (fraudulent transfers, bankruptcy fraud, money laundering)
- United States v. van der Horst, 270 F.Supp. 365 (D. Del. 1967) (Fraudulent conveyance matter; judgment against nonresident expatriated former U.S. citizen in rem only.)
- Delaune v. United States, 143 F.3d 995 (5th Cir. 1998) — Brief for appellee — see IRM ¶ 4.11.52
- Drye v. U.S., 528 U.S. 49 (1999) (disclaimer cannot defeat an IRS lien) — Comment, Adam J. Hirsch, "Disclaimers and Federalism", 67 Vand. L. Rev. 1871 (2014) — Comment, Kevin A. White, "A Clash of Expectations: Debtors' Disclaimers of Property in Advance of Bankruptcy", 60 Wash. & Lee L. Rev. 1049 (2003) — Stephen E. Parker, "Can Debtors Disclaim Inheritances to the Detriment of Their Creditors?", 25 Loyola U. Chi. L. J. 31 (1993)
- U.S. v. Craft, 535 U.S. 274 (2002) (IRS lien, tenancy by the entireties property)
- Patterson v. Shumate, 504 U.S. 753 (1992) ("The plain language of the Bankruptcy Code and ERISA establishes that an antialienation provision in a qualified pension plan constitutes a restriction on transfer enforceable under 'applicable nonbankruptcy law' for purposes of § 541(c)(2)".
- U.S. v. Jung Joo Park, 120 AFTR 2d 2017-6075, 2017 WL 4417826 (N.D. Ill. 2017) ("action to collect a tax penalty assessed against Que Te Park, who is now deceased, from his surviving family members or estate. His children, defendants Charles C. Park, James Park, and Nina Park have moved to dismiss the claims against them. The motion to dismiss is granted, with leave to file an amended complaint by November 7, 2017") — Comment, Wealth Strategies Journal, "US v. Park Illinois, Northern District Court: US seeks FBAR penalties from Rev Trust Trustee and Beneficiaries"
- U.S. v. Jung Joo Park (Estate of Que Te Park), 389 F.Supp.3d 561 (N.D. Ill. 2019) (Subsequent action: UBS client; gov't suit to collect judgment; service of process; fraudulent conveyance).
- National Criminal Justice Assn: Asset Seizure & Forfeiture: A Case Law Compendium (Jan. 1998)
- See U.S. v. One Hundred And Twenty Thousand Eight Hundred And Fifty Six Dollars In United States Currency More Or Less (Bernard Wray, Claimant), 394 F.Supp.2d 687 (D. V.I. 2005) above, with links
- Richard D. Emery, Who’s Policing the Prosecutors?, N.Y. Times, Dec. 10, 2014 (Archived copy) ("Another growing revenue source is civil forfeiture, which allows the authorities to seize cash, cars and even homes from people who haven’t been charged with wrongdoing, who in order to get the property back must prove that it was legally acquired.")
- Justin Jouvenal, "Homeland Security seized $2 billion from travelers, but most were never charged with a crime, report says", Washington Post, July 30, 2020 (Archived copy)
- Bernard L. Madoff was not charged with money laundering, tax evasion nor FBAR violation, although the facts suggest he could have been: DOJ list of related cases with links — Criminal Complaint — Criminal Information — Decision — Harry Markopolos, No One Would Listen: A True Financial Thriller (2010)
- U.S. v. Friehling, S.D. N.Y. Case 09-cr-700 (Madoff accountant) — DOJ Press Release — DOJ Description of proceedings — Complaint — Judgment — Order — N.Y. Times list of articles "Madoff accountant avoids prison term" (Archived copy)
- Deinlein v. U.S., E.D. Ky. Case 13-cv-45 — Comment, Peter J Reilly, "Don't Leave Money To Children Buried Under IRS Liens", Forbes, Jul. 31, 2014
- In Re Lyons, 148 B.R. 88 (D.D.C. 1992) (IRS liens on ERISA-qualified pension asset). — DOT Memorandum for District Counsel 200041029, "Pensions as Property of the Bankruptcy Estate"
- "Fear of Incurring Large Tax Penalties if Taxpayer Loses in Court Does Not Constitute Duress", Howard Zaritsky's Estate Planning Update, Apr. 1, 2021
- Caroline Rule, “IRS Form 3520, Penalties, and Whether to Make a Protective Filing: Information Reporting on Foreign Trusts and Gifts”, CPA Journal, Dec. 2017 (Ambiguity of law and rules, including definition of “foreign trust” at 26 U.S. Code §679 and 26 CFR §301.7701-7) (A foreign asset reportable on FBAR and IRS Form 8938 may be characterized as a foreign trust even if not so labeled under foreign law, with severe penalties of $10,000 or 35% for non-declaration.)
- ABA Tax Times, "Time Will Not Make This Problem Disappear: The Open-Ended Statute of Limitations for Taxpayers With Delinquent Foreign Information Returns (especially Forms 3520, 5471, 8938)" (2016)
- Robert Lyon, "Expats and IRS tax collection statute limitations" (2015).
- Tax Expatriation Blog, "Will the IRS be assisting the Justice Department to prosecute U.S. citizens who have lived abroad most (if not all) of their lives?" (Apr. 23, 2015) (Includes discussion with Jack Townsend: “Most persons who are not fugitives and who spend significant amount of time outside the U.S. are not at material risk of criminal prosecution.” (Giving reasons)
- Federal Tax and Form Crimes Blog, "What's The FBAR Statute Of Limitations?" (2014) ("Limitations periods for tax-related offenses will be tolled while the taxpayer has absconded or is outside the United States; and on civil liability also where a fraudulent return or no return has been filed.")
- Tax Expatriation Blog, "When does the Statute of Limitations Run Against the U.S. Government Regarding FBAR Filings?" (Mar.25, 2014)
- Virginia La Torre Jeker, "Criminal Tax Evasion – Statute of Limitations- When Must the Indictment Be Brought?", Angloinfo, Sept. 2, 2013
- Tax Expatriation Blog, "When the U.S. Tax Law has no Statute of Limitations against the IRS; i.e., for the U.S. citizen and LPR residing outside the U.S." (Mar. 24, 2014)
- Jack Townsend, ”Statutes of Limitations for FBAR Noncompliance Related to Tax Noncompliance” (3/12/13)
- Robert W. Wood, "What's The FBAR Statute Of Limitations?", Forbes, Dec 17, 2013
- Robert W. Wood, "Beware Longer IRS Statute Of Limitations On Foreign Accounts", Forbes, May 14, 2012
- House Committee on Government Reform, Justice Undone: Clemency Decisions in the Clinton White House, Second Report by the, vol. 1 (2002), Executive Summary
- Paul L. Caron, "The Federal Tax Implications of Bush v. Gore", 79 Washington U. L. Rev. 749 (2001) (Deference to State courts in matters of State law)
In the United States, limitations periods for tax-related offenses will be tolled while the taxpayer has absconded or is outside the United States (but whether that applies to someone living permanently abroad is disputed); and on civil liability where a fraudulent return or no return has been filed: 18 U.S.C. § 3290, 26 U.S.C. § 6531; U.S. v. Hoffman, 80 A.F.T.R. 2d (RIA) 6062 (6th Cir. 1997); U.S. v. Greever, 134 F.3d. 777 (6th Cir. 1998) ("Both McGowen v. United States, 105 F.2d 791 (D.C.Cir.1939), and King v. United States, 144 F.2d 729 (8th Cir.1944), held that mere absence from the jurisdiction where the crime was committed was enough to toll the statute of limitations and that the government need not prove intent to avoid prosecution. However, other cases have held, and this court has noted, that 'fleeing from justice requires intent to avoid arrest or prosecution rather than mere absence from the jurisdiction.' United States v. Hoffman, No. 94-6289, 1997 WL 476513, at *4 (6th Cir. Aug. 19, 1997) (citing United States v. Wazney, 529 F.2d 1287 (9th Cir.1976); Jhirad v. Ferrandina, 486 F.2d 442 (2d Cir.1973); Donnell v. United States, 229 F.2d 560 (5th Cir.1956); Ferebee v. United States, 295 F. 850 (4th Cir.1924))."). The limitations period on collection of assessed tax will likewise be tolled: 26 US.C. § 6503(c). Whether a taxpayer resident and/or domiciled abroad shall be considered an "absconder" for this purpose has been an open question and the imposition of citizenship-based taxation generally, even as to "accidental Americans" born abroad to an American parent, or born in the USA to alien parents, who may barely or never have set foot on American soil, suggests that imposing the primacy of American law is more a matter of "exceptionalist pre-emption" than any principled norm. Yet, § 6531(8) reads: "The time during which the person committing any of the various offenses arising under the internal revenue laws is outside the United States or is a fugitive from justice within the meaning of section 3290 of Title 18 of the United States Code, shall not be taken as any part of the time limited by law for the commencement of such proceedings." See DOJ Criminal Tax Manual, ¶ 7.00.
On the taxpayer as fugitive, as absconder or outside the United States, and civil liability where a fraudulent return or no return has been filed, see Virginia La Torre Jeker, "FBAR and Tax Crime Statutes of Limitations – Suspended When Overseas?", Angloinfo, June 22, 2015) and Anthony N. Verni, "Outrunning the IRS: FBAR Statute of Limitations Guidelines", Jul. 24, 2016). On the fugitive disentitlement doctrine see Molinaro v. New Jersey, 396 U.S. 365 (1970), limited by Ortega-Rodriguez v. United States, 507 U.S. 234 (1993); State v. Bell, 2000 ND 58, 608 N.W.2d 232 (2000) (discussion of states' practices); Angelo M. Russo, "The Development of Foreign Extradition Takes a Wrong Turn in Light of the Fugitive Disentitlement Doctrine: Ninth Circuit Vacates the Requirement of Probable Cause for a Provisional Arrest in Parretti v. United States", 49 DePaul L. Rev. 1041 (2000); also Robert Lyon, "Expats and IRS tax collection statute limitations" (2015). note especially Jack Townsend's blog entry "Statutes of Limitations for FBAR Noncompliance Related to Tax Noncompliance" (2013) (mentioning the possibility of a sealed indictment); John Simon, Charles G. Dawes, "Extradition: The Statute of Limitations is Tolled By Constructive Flight", 10 Case W. Res. J. Int'l L. 521 (1978).
Traps for the unwary include an extended statute of limitation in certain cases and an unlimited period for an entire tax return where a particular tax document has not been filed. In the Dewees case a form or schedule (in that case form 5471) was not filed out of ignorance and tax advisor error, leaving the taxpayer with no time bar and an annual penalty of $10,000. Many citizens abroad will owe tax due to temporal conflicts of pension contributions and payments (thus: U.S. tax on the foreign contributions and foreign tax on the retirement annuity payments). Others' offenses will come to light because they volunteered for one of the IRS disclosure programs.
The U.S. Government is not bound by a state (or foreign) time bar
- United States v. Vellalos, 780 F.Supp. 705 (D. Hawaii 1992)
- Stoecklin v. United States, 858 F.Supp. 167 (M.D. Fla. 1994)
- U.S. v, Cody, 961 F.Supp. 220; 79 A.F.T.R.2d 97-1347 (S.D. Ind. 1997). This is mostly relevant with respect to transferee liability (fraudulent transfers) and decedents' estates (probate under state law, and insolvent debtors).
- Bresson v. Comm'r, 213 F.3d 1173 (9th Cir. 2000) Held: "The Tax Court did not err in holding the CUFTA’s claim-extinguishment provision inapplicable to the IRS."
- Links to selected asset protection, fraudulent conveyance and transferee liability cases through 2005. A comparable issue arises with an insolvent heir and the validity of a disclaimer.
- Adam J. Hirsch, "The Problem of the Insolvent Heir", 74 Corn. L. Rev. 587 (1989) — Other published articles by Prof. Hirsch on related topics.
- Van deMark v. Toronto-Dominion Bank, IRS claim to funds held by alleged nominee. IRS proceeded against the U.S. branch of a foreign bank in an effort to attach funds in the USA equivalent to a deposit held in Canada. Alleged debtors had never been "U.S. Persons" nor done business in the U.S.; claim was in transferee liability for "tax arrears" owed by grantor. The Tax-Expatriation Blog has discussed "U.S. Enforcement/Collection of Taxes Overseas against USCs and LPRs – Legal Limitations" (July 5, 2014).
A comparable issue arises with an insolvent heir and the validity of a disclaimer. Likewise for a foreign insolvency procedure where the U.S. Government did not file a proof of claim or debt: any such discharge may be valid only in the jurisdiction where it was granted: a geographic bar to the remedy and not the debt. This creates an anomaly for covered expatriates without income, assets or heirs in the U.S.A. who reside and are domiciled in another country of nationality and who have renounced U.S. citizenship without paying exit taxes under I.R.C. § 877 or 877A.
- Jayne Thompson, "What Is a Sealed Indictment?" (Dec. 19, 2018)
- Jack Townsend, "Sealed Indictments - A Primer (7/11/12; revised" (6/29/16)
- Jay Adkisson, "A Wedding And The Writ Of Ne Exeat Republica", Forbes, Feb. 7, 2014
- Keith Fogg, "Holding People Hostage for the Payment of Tax – Writ Ne Exeat Republica", Procedurally Taxing Blog, Feb. 11, 2014
- Keith Fogg, "Restitution Order, IRA Account, Community Property = Unfortunate Result for Non-Liable Spouse", Procedurally Taxing Blog, Feb. 11, 2019 — U.S. v. Berry, S.D. Tex. Case 17-cr-385 — Docket — Memorandum Opinion — DOJ Press Release, "Houston Bookkeeper Charged in a Scheme to Embezzle from a Client", Aug. 25, 2017 ("The indictment alleges Berry took funds in excess of $1.7 million from a family for whom was she provided bookkeeping services")
- Attorney General of Washington, Garnishment & Other Withholding Documents: Processing Procedures (2003)
- And see: Bruce Zagaris, U.S. Efforts to Extradite Persons for Tax Offenses, 25 Loy. L.A. Int'l & Comp. L. Rev. 653 (2003) and other cases and materials on extradition below
Note few cases below, among Federal Cases Mentioning "FBAR" where a sealed indictment or equivalent was used to surprise a nonresident alien or citizen either upon arrival in the U.S.A. or in a country where an Interpol Red Notice might be honored. The Barrett and Raoul Weil cases are examples. Such procedures on the part of the IRS are costly in time and money: they are uncommon. Some are politically driven cases, others are pour encourager les autres.
An important conflicts issue is definitional, thus: for purposes of U.S. tax law, what constitutes a trust? A "trust of land" (formerly a trust for sale) in English law is a "bare trust", a substitute for tenancy in common or joint tenancy, especially with more than four parties, the limit to land registration: it does not have the qualities of a typical trust and is transparent, the beneficiaries having direct rights.
- Trusts of Land and Appointment of Trustees Act 1996, 1996 c. 47
- Lorna Fox, Living in a Policy State: From Trust for Sale to Trust of Land, 22 Liverpool L. Rev. 59-88 (2000)
- Lexis PSL, Trusts of land—overview (Archived copy)
- Hayley Parfitt, Legal estates and beneficial interests: what's the difference?, HM Land Registry, Aug. 16, 2016
- HM Land Registry, Practice Guide 24, Trusts of Land
- Mexican land titles: Jorge A. Garcia, "The Mexican Trust (fideicomiso)"
- IRS Rev. Rul. 2013-14, "Is the fideicomiso or Mexican Land Trust arrangement ('MLT'), described below, a trust under Treasury Regulation § 301.7701-4(a)?" (Answer: it is generally not deemed a trust for U.S. tax purposes.)
- See Robert L Williams, Guide to US/UK Private Wealth Tax Planning, 2nd ed. (2016)
- Jo Summers, "Back to Basics: FATCA and UK trusts", The Law Society, July 16, 2014 (Co-ownership of land (whether as joint tenants or tenants in common) is a trust of land and usually a "non-financial foreign entity" not subject to FATCA or FBAR.)
- Hanoch Dagan, Irit Samet, "The Beneficiary's Ownership Rights in the Trust Res in a Liberal Property Regime", 86 Modern L. Rev. 701 (2023) (Beneficiary's right is proprietary in nature.)
- Charles E. Rounds, Jr., "The Doctrine of Renvoi may still have some relevance in the trust context", JDSupra, Apr. 10, 2022 (Potentially relevant to IRS Foreign Trust rules)
On the other hand, a foreign entity may be a trust for U.S. tax purposes even though a "trust" is not, itself, an entity:
- 26 CFR § 301.7701-4 - Trusts
- Phil Hodgen, "Form 8832, Community Property, and Foreign Business Entities" (June 22, 2018)
- Estate of Swan v. Comm'r, 24 T.C. 829 (1955), acq. 1956-2 C.B. 8, aff'd in part and rev'd in part on other grounds, 247 F.2d 144 (2d Cir. 1957)
- PLR 200302005
- PLR 200226012
- Phil Hodgen, "Is an ISA a foreign trust?”, Sept. 5, 2013 (U.K. tax-sparing savings and investments: Answer: "Probably not") (Furthermore a Junior ISA is comparable to a UTMA or a 529 account in the USA in terms of function and nominee or guardianship conditions) But other tax advisors disagree; The IRS has not taken a public stance and there has been no litigation on the subject or reported or published enforcement activity. Volunteering to be subject to doubtful tax liability creates its own risks and costs.
On the complexity of determining the status, as corporation, pass-through entity, partnership, trust or other object of U.S. taxation or asset declaration, with potentially severe penalties for getting it wrong, see this brief online essay on the website of a firm of tax lawyers: "Understanding the U.S. Tax Classification of Your Foreign Business Entity" (2017)
Community property can bring assets of a non-U.S. Person within the scope of U.S. taxation. — Basic Principles of Community Property Law — List of jurisdictions recognized by IRS as community property, arguably incomplete).
- Lane-Burslem v. Comm'r, 72 T.C. 849 (1979) (“whether one-half of petitioner's salary earned while she was employed in England by the United States Department of Defense should be treated as her spouse's income under Louisiana community property laws, and, therefore, exempt from United States income taxation because her spouse was a nonresident alien")
- 26 CFR § 301.7701-3, Classification of certain business entities ("classification for an entity that is owned solely by a husband and wife as community property under the laws of a state, a foreign country, or a possession of the United States")
- Robert W. Wood, "Taxes and FBARs for Joint Bank Accounts", Tax Notes, Oct. 19, 2015, p. 441
- "FBAR Enforcement—Five Years Later", by Steven Toscher and Michel R. Stein, J. Tax Practice & Proc., June-July 2008, p. 37 ("[A] community property interest in funds in a foreign account is not a 'financial interest' in an account which would require separate reporting.")
- Harold Marsh, Jr., Marital Property in Conflict of Laws (1952)
- Jeffrey Schoenblum, "U.S. Conflict of Laws Involving International Estates and Marital Property: A Critical Analysis of Estate of Charania v. Shulman", 103 Iowa L. Rev. 2119 (2018)
- Estate of Charania v. Shulman, C.I.R., 608 F.3d 67 (1st Cir. 2010) — Docket — Petitioner's opening brief — Respondent's opening brief — Petitioner's reply brief — Opinion
Quasi-community property and its foreign equivalents do not provide a step-up in basis at death nor, attribution rules aside, tax liability to the non-U.S. Person spouse; but see the limits to attribution.
Inevitably asset protection and estate planning (and executor and beneficiary liability for unpaid income, gift, and estate taxes of a decedent) are common concerns of expatriate and accidental Americans suddenly faced with facts of what, to the IRS, is "tax defalcation". While transferee liability rules (discussed above) put the IRS in a strong position within the United States and as to U.S. heirs of tax debtors abroad, rules of estates, discretionary trusts (with a proviso relating to self-settlement), trust protectors, entities, foreign succession, charitable legacies (but see Estate of Silver v. Comm'r, 120 T.C. 430 (2003), charitable contribution deduction on estate tax return of NRA decedent) and insolvency in foreign jurisdictions are not in its favor. Even fraudulent (voidable) transfer (or Civil Code Paulian action) law may be unhelpful to it across borders. Enforcing a U.S. default judgment or lien and retaining commercial collection agencies are unlikely workarounds. As to former U.S. Persons who are liable for tax only because of procedural defects in terminating legal residence status, or failure to file tax returns and expatriation statement after renunciation, there is little public record of IRS collection action abroad beyond tax-treaty reciprocal collection provisions, discussed above.
Canadian "foreign specified property" reporting requirement (a provision comparable to FBAR) but using end-of-year data, not highest balance:
- Income Tax Act (R.S.C., 1985, c. 1 (5th Supp.)) § 233.3
- Canada Revenue Agency, International Tax Gap and Compliance Results for the Federal Personal Income Tax System
- Questions and answers about Form T1135
- Deloitte, "Revised Form T1135, Foreign Income Verification Statement"
- Tim Cestnick, "Yes, it is possible to fight the taxman and win", Globe and Mail, July 25, 2012 (relief for late-filed T1135)
- Bruce W. Douglas v. The Queen, 2012 TCC 73
- Further T1135 tax cases (via CanLII)
8. Bibliography (In Descending Date Order)
- JD Supra News Analysis, "Foreign Bank Account Report" (current topics)
- Tax Notes FATCA bibliography (Paywall, but article titles may suggest alternative sources)
- 26 U.S. Code § 877 Expatriation to avoid tax and 26 U.S. Code § 877A Tax responsibilities of expatriation
- Lynn Ruggieri, Julia M. Camp, Lynn Comer Jones, John McQuilkin, "Implications of Recent Foreign Bank Account Reporting Litigation", 21 ATA J. of Legal Tax Research 45 (2023)
- Andrew Appleby, "No Migration Without Taxation: State Exit Taxes", 60 Harv. J. on Legis. 55 (2023)
- Keith Robert Fisher, "Civil Money Penalties and FBARs", American Bar Association, Apr. 17, 2023 (Archived text)
- John A. Townsend, Federal Tax Procedure (2022 Practitioner Ed., 1061 Pages) — All Jack Townsend SSRN publications, including Federal Tax Crimes (2013) and subsequent editions of annual Federal Tax Procedure
- Noam Noked, Zachary Marcone & Alison Tsang, "The Expansion and Internationalization of Mandatory Disclosure Rules", 13 Colum. J. Tax L. 122 (2022)
- Robert T. Kudrle, "Citizenship, Taxation, Globalization and Inequality", 25 Fla. Tax Rev. 797 (2022)
- Ashley Deeks, Andrew T. Hayashi, "Tax Law as Foreign Policy", 170 U. Pa. L. Rev. 275 (2022)
- Patrick Riley Murray, "Size Matters (Even If the Treasury Insists It Doesn't): Why Small Taxpayers Should Receive a De Minimis Exception from the GILTI Regime", 106 Minn. L. Rev.1625 (2022)
- Grace Nielsen, "Resolving the Conflicts of Citizenship Taxation: Two Proposals", 25 Fla. Tax Rev. 436 (2022)
- Juliane Kokott, Pasquale Pistone, Robin Miller, "Public International Law and Tax Law: Taxpayers' Rights: The International Law Association's Project on International Tax Law—Phase 1". 52 Geo. J. Int'l L. 381 (2021)
- Jay A. Soled, "The IRS’s Voluntary Disclosure Program: Need for Codification", 37 Ga. State Univ. L. Rev. 957 (2021)
- Megan L. Brackney, Procedurally Taxing Blog, Jan. 2020, "Problems Facing Taxpayers with Foreign Information Return Penalties and Recommendations for Improving the System", Part 1 — Part 2 — Part 3
- David Elkins, "A Scalar Conception of Tax Residence for Individuals", 41 Va. Tax Rev. 149 (2020) ("Tax treaties typically employ a series of tie-breaking provisions to determine residency when each of the two signatories views an individual as a resident in accordance with its own domestic rules." See the Aroeste case, below.)
- Rebecca M. Kysar, "Unraveling the Tax Treaty" (2020) Minn. L. Rev. 3256
- Lisa De Simone, Rebecca Lester, Kevin Markle, "Transparency and Tax Evasion: Evidence from the Foreign Account Tax Compliance Act (FATCA)", 58 J. of Accounting Research 105 (2020)
- James Alm et al., "New Technologies and the Evolution of Tax Compliance", 39 Va. Tax Rev. 286 (2020)
- Carl Pacini et al., "An Analysis of Money Laundering, Shell Entities, and No Ownership Transparency That Washes Off and on Many Shores: A Building Tidal Wave of Policy Responses", 30 Kan. J.L. & Pub. Pol'y 1 (2020)
- Luis Calderon Gomez, "Transcending 'Tax' Sovereignty and Tax Standardization: Three Questions", 45 Yale J. of Int. L. 191 (2020)
- Matthew Gould, Matthew D. Rablen, "Voluntary disclosure schemes for offshore tax evasion". 27 Int'l Tax and Public Finance 805 (2020)
- Leabdra Lederman, Joseph Dugan, "Information Matters in Tax Enforcement", 2020 B.Y.U.L. Rev. 145
- IRS, Relief Procedures for Certain Former Citizens (2019) ("The IRS announced procedures for certain persons who have relinquished, or intend to relinquish, their United States (U.S.) citizenship and who wish to come into compliance with their U.S. income tax and reporting obligations and avoid being taxed as a 'covered expatriate' under section 877A of the U.S. Internal Revenue Code (IRC).")
- Annette Alstadsæter, Niels Johannsen, Gabriel Zucman, “Tax Evasion and Inequality”, 109 Am. Econ. Rev. 2073 (2019)
- Khrista McCarden, "Offshore Tax Enforcement and Divorce", 80 Ohio State L.J. 521 (2019)
- Pierre-Hugues Verdier, "The New Financial Extraterritoriality", 87 Geo. Wash. L. Rev. 239 (2019) ("federal prosecutors have brought an unprecedented wave of criminal cases against foreign banks for activities centered abroad, including benchmark manipulation, tax and sanctions evasion, and money laundering")
- Karen Alpert, "Callous Neglect: The impact of United States tax reform on nonresident citizens", Draft, Jan. 8, 2019
- Steven M. Friedman and Timothy J. McCormally, "FBAR Update: Officers and Employees Should Remain Vigilant Pending Regulatory Reform", KPMG What's News in Tax, Mar. 18, 2019
- Rachel E. Brinson, "Is the United States Becoming the 'New Switzerland'?: Why the United States' Failure to Adopt the OECD's Common Reporting Standard is Helping it Become a Tax Haven", 23 N. Car. Banking Inst. 231 (2019)
- Leo Ahrens & Fabio Bothner, The Big Bang: Tax Evasion After Automatic Exchange of Information Under FATCA and CRS, New Political Economy (2019)
- Michael D. Kummer and Saul Mezei, "The Non-Willful FBAR Per-Account/Per- Form Issue Deserves Closer Scrutiny", Tax Notes Federal, v. 164, no. 3, July 15, 2019
- Tax, Inequality, and Human Rights, Philip Alston, Nikki Reisch, eds. (2019)
- Lisa De Simone, Rebecca Lester, Kevin Markle, "Transparency and Tax Evasion: Evidence from the Foreign Account Tax Compliance Act (FATCA)", Stanford Business Working Paper No. 3744 (Feb. 1, 2019)
- Jihan Jude, "Will Corruption in Argentina Prevent the Protection of Personal Tax Information It Exchanges Under its FATCA and CRS Commitments?", 50 U. Miami Inter-Am. L. Rev. 123 (2019)
- Ian Weinstock, "Understanding FBAR Disclosure Responsibilities: When Must an Entity or Connected Individual File?", CPA J., Mar. 2019, p. 58 (Archived copy)
- Dhammika Dharmapala, "The Consequences of the TCJA's International Provisions: Lessons from Existing Research", University of Chicago Coase-Sandor Institute for Law & Economics Research Paper No. 856, Univ. of Chicago, Public Law Working Paper No. 681, rev'd Mar. 31, 2019 — Review, Paul Caron, "Dharmapala: The Consequences Of The TCJA's International Provisions — Lessons From Existing Research" Aug. 9, 2018 — Theodore P. Seto, "An Empirical Assessment of the Likely Impact of the International Provisions of the TCJA", May 31, 2019
- Law360, “European Countries Reluctant To Challenge FATCA", Nov. 27, 2019
- Oliver Bullough, Moneyland: Why Thieves and Crooks Now Rule the World and How To Take It Back (2018) (Ch. 17, Breaking Switzerland; Ch. 18, Tax Haven USA (on FATCA, CRS and the U.S.A. as tax haven)
- Ana Tanasoca, The Ethics of Multiple Citizenship (2018) — Comment, GLOBALCIT Review Symposium on Ana Tanasoca, The Ethics of Multiple Citizenship, European University Institute (2019)
- Wilda Lin, "FBAR Filing for Non-U.S. Citizens" CPA J., Oct. 2018 (Nonresident alien spouse of U.S. Person, electing to file joint return, may not need to file an FBAR)
- A series of articles of scholarly value by "Eric" on the Isaac Brock Society forum on matters related to status, expatriation and rights (to 2018)
- Practising Law Institute, "Background of the Foreign Account Tax Compliance Act (FATCA)", (2018)
- Shu-Yi Oei, "The Offshore Tax Enforcement Dragnet", 67 Emory L.J. 655 (2018)
- Noam Noked, "FATCA, CRS, and the Wrong Choice of Who to Regulate", 22 Fla. Tax Rev. 77 (2018)
- Niels Johannesen, Patrick Langetieg, Daniel Reck, Max Risch, Joel Slemrod, Taxing Hidden Wealth: The Consequences of U.S. Enforcement Initiatives on Evasive Foreign Accounts, NBER Working Paper 24366 (March 2018) (Presented at 2017 NYU Tax Policy Colloquium)
- Stephen Dunn, "Recent Cases Highlight FBAR Penalty Trends", NewsMax Finance, July 26, 2018 (Archived copy)
- John Richardson, "Taxation of #AmericansAbroad in the 21st Century: 'Country of birth' Taxation vs. 'Country of Residence' Taxation" (2018) ("The current practice of U.S. 'place of birth taxation' is much more analogous to a 'property interest' that a country has in its citizens than a voluntary commitment to the engagement that should characterize good citizenship. It is respectfully submitted that 'citizenship' should imply a voluntary connection to a country and not a form of 'ownership' where the citizen exists only to serve the government.")
- Samantha McKay, The Foreign Account Tax Compliance Act: A Constitutional Analysis (2018). Law School Student Scholarship 944. ("FATCA should be repealed")
- Noam Noked, "The Future of Voluntary Disclosure", Tax Notes, v.160, no. 6, Aug. 6, 2018
- Benetta P. Jenson and Rebecca Wallenfelsz, "What the FATCA is going on? navigating various U.S. tax implications and compliance requirements for international clients and assets", Estate Planning Course Materials J. 46 (Oct. 2017) (Archived copy)
- Michael W. Galligan and Ira Olshin, "United States Estate and Income Taxation of Non-Resident Aliens" (2017)
- Jake Bernstein, Secrecy World: Inside the Panama Papers Investigation of Illicit Money Networks and the Global Elite (2017) — Review, Helen Brown, "Secrecy World" (2018)
- Sharon McCarthy, "The Pitfalls of Streamlined Foreign Account Disclosures", CPA Journal, July 2017
- Timothy M. Todd, "The required-records doctrine and the Fifth Amendment", The Tax Advisor, July 1, 2017
- Thun Financial Advisors, "The Foreign Pension Plan Dilemma for American Expats" (2017) ("Unfortunately, the U.S. worldwide system of citizen-based taxation was instituted before modern pension plans and long before the advent of an internationally mobile work force. Consequently, current U.S. tax laws do not favor participation in most foreign pension plans and the IRS generally views foreign pension plans, including ones 'qualified' under local tax rules, as 'nonqualified' under U.S. tax rules.") Ed. note: In fact, before the discontinuance of most defined-benefit pension plans, multi-national firms would contract with the U.S. Social Security Administration to subject employees seconded abroad to FICA as part of an "integrated pension scheme". Existing totalization agreements reflect that 1970s practice, typically by providing that for a limited, say 5-year, period (Canada: see Art. V(2); U.K. Art. 4(2)) a seconded employee could remain subject to the U.S., not local state-pension scheme.
- Allison Christians, "A Global Perspective on Citizenship-Based Taxation", 38 Mich. J. Int'l L. 193 (2017) ("The extraordinary tax claims made by the United States upon its citizens at the very least implies that those who obtain that status without their informed consent have an absolute right to exit. Upon learning of their status and the obligations attendant thereto, these citizens must be entitled to leave without being compelled to produce paperwork, engage in interviews, endure punishment for past tax or information reporting noncompliance, or pay a fee, as current law requires.")
- Karen Brodsky and Sha Zhang, "International Information Reporting for U.S. Individuals" (2017) ("It is important for tax practitioners to be aware of the various information reporting obligations their clients may face and to work with specialists in these areas as needed to help their clients pursue a clear understanding of their reporting obligations and remain in compliance.")
- Christopher Rajotte, "4 Key Defenses In FBAR Liability", Law360, Aug. 7, 2017
- Robert Horwitz and Steven Toscher, "Litigating the FBAR Penalty—Where Do We Go After IRS Appeals", J. of Tax Practice and Procedure, June-July 2017, p. 33 (Archived copy)
- Jack Townsend, Federal Tax Crimes Blog, "Consideration of Sentencing Disparities in Sentencing" (9/3/17; 9/8/17)
- Hale E. Sheppard, "Government Wins Fourth Straight FBAR Penalty Case: Analyzing Bohanec and the Evolution of ‘Willfulness’" (2017)
- Tessa Davis, "The Tax-Immigration Nexus", 94 Denv. L. Rev. 195 (2017)
- Laura Saunders, "Are You Hiding Money from the IRS Overseas? Be Very Afraid: The agency has new tools to find secret accounts and penalties are harsher", Wall St. J., June 2, 2017 (Archived copy with 91 reader comments) (Another copy with 154 comments, MSWord *.doc format)
- Media and blog articles of 2017 (with links to other years) collected by Isaac Brock Society
- Ross K. McGill, Christopher A. Haye and Stuart Lipo, G.A.T.C.A.: A Practical Guide to Global Anti-Tax Evasion Frameworks (2017)
- Michigan Journal of International Law Tax Symposium Issue: Vol. 38, Issue 2, Winter 2017 ("This issue of MJIL features four out of the many outstanding papers that were presented at a conference on Taxation and Citizenship held at Michigan Law in October 2015 and co-organized by Allison Christians and [Reuven S. Avi-Yonah]. The impetus for the conference was the realization that the unique U.S. practice of taxing its citizens on worldwide income, regardless of where they reside, has become a major flashpoint in the relationship between the United States and its citizens living overseas, and sometimes also between the United States and the country those citizens resided in.")
- Tax Symposium: Introduction, Reuven S. Avi-Yonah
- Citizenship Overreach, Peter J. Spiro
- A Global Perspective on Citizenship-Based Taxation, Allison Christians
- Minimalism About Residence and Source, Wei Cui
- Defining Residence for Income Tax Purposes: Domicile as Gap-Filler, Citizenship as Proxy and Gap-Filler, Edward A. Zelinsky
- James F. Kelly, Note and Comment: "International Tax Regulation by United States Fiat: How FATCA Represents Unsound International Tax Policy", 34 Wis. Int'l L. J. 981 (2017)
- "Are Taxes Converging?" Review of A Global Analysis of Tax Treaty Disputes, by E. Baistrocchi, ed. Cambridge: Cambridge University Press, 2017
- Amit Agrawal, CRS: The End of Tax Evasion?, FinTech Futures, June 30, 2017
- John S. Wisiackas, Comment: "Foreign Account Tax Compliance Act: What It Could Mean For the Future of Financial Privacy and International Law", 31 Emory Int'l L. Rev. 585 (2017)
- Michael B. Cohen, Avoiding Double Taxation and Expatriation: A Comprehensive Solution to FATCA and Corporate Inversion, 41 N.C.J. Int'l L. & Com. Reg. 595 (2016)
- Robert T. Kudrle, "Tax havens" are seen, not least of all in U.S. tax legislation, as legitimate for corporations and illegitimate for individuals: Tax Havens and the Transparency Wave of International Tax Legalization, 37 U. Penn. J. Int'l L. 1153 (2016)
- Fiserve, Inc., “White Paper: Tax Evasion: Power FATCA/CRS Compliance with AML Technology” (Mar. 2016) (Promotional document, explaining relationship between Know Your Customer, Anti-Money-Laundering and FATCA/CRS compliance)
- Elizabeth M. Valeriane, IRS, Will You Spare Some Change?: Defining Virtual Currency for the FATCA, 50 Val. U. L. Rev. 863 (2016)
- Daniel Bodansky and Peter Spiro, Executive Agreements Plus, 49 Vand. J. Transnat'l L. 885 (2016)
- Tracy A. Kaye, Tax Transparency: A Tale of Two Countries, 39 Ford. Int'l L. J. 1152 (2016) ("The Panama Papers are also a powerful reminder that transparency matters greatly in the war on tax evasion.")
- Robert T. Kudrle, "Tax havens" are seen, not least of all in U.S. tax legislation, as legitimate for corporations and illegitimate for individuals: Tax Havens and the Transparency Wave of International Tax Legalization, 37 U. Penn. J. Int'l L. 1153 (2016)
- Giovanni Legorano and John Letzing, "Italy’s Crackdown on Tax Evasion Deals Another Blow to Swiss Banks", Wall Street J., Feb. 9, 2016 (Archived copy)
- Ruth Mason, Citizenship Taxation, 89 So. Cal. L. Rev. 169 (2016)
- Charles P. Rettig, "Why the Ongoing Problem with FBAR Compliance?", J. Tax Pract. & Procedure, Aug.-Sept. 2016, p. 37 ("The perception of fairness associated with ongoing enforcement efforts will have a significant impact on the future of both domestic and international U.S. tax compliance. Similarly, the perception that those who voluntarily come forward were treated unfairly in some manner will have a significant, although adverse, impact on the future of U.S. tax compliance. The lesson learned from the OVDP and Streamlined programs encouraging voluntary compliance should not be that only 'chumps' participate.")
- David S. Kerzner, David W. Chodikoff, "International Tax Evasion in the Global Information Age" (2016)
- Ana Tanasoca, "Citizenship for Sale: Neomedieval, not Just Neoliberal?", 57 Eur. J. Soc. 169 (2016)
- Scott D Michel and Arielle M Borsos, "US Tax Enforcers React to The Panama Papers", IFC Review, Jan. 9, 2016
- Dhammika Dharmapala, "Cross-border tax evasion under a unilateral FATCA regime", 141 J. Pub. Econ. 29 (2016)
- Two YouTube interviews of this writer by John Richardson, Toronto nationality and tax lawyer: Mar. 16, 2014 and Dec. 8, 2016
- Montano Cabezas, "Reasons for Citizenship-Based Taxation?", 121 Penn. St. L. Rev. 101 (2016) ("Congress should … set out the grounds for its decision to tax citizens abroad. It follows that if the U.S. government feels that it cannot justify citizenship-based taxation, then it should be abolished.")
- The Economist, America the Not So Brave; Tackling Tax Evasion (May 23, 2015) ("America has led the global assault on tax dodgers and their enablers. But the reality still lags the rhetoric")
- Lucy S. Lee and Irene A. Steiner, "FATCA in a Nutshell for Foreign Trusts, Trustees and Beneficiaries", N.Y.L.J. Jul. 6, 2015 (Archived copy)
- A Study of the Consequences of the Foreign Account Tax Compliance Act on Americans Living Overseas: Survey Results and Interpretations, Univ. of Nevada (2015) ("Americans living abroad generally feel that the FATCA negatively impacts their professional pursuits and compliance is burdensome.")
- Andrew Mitchell and Ryan Dunn, "The Escalation of Offshore Penalties Over the Last 20 Years", International Tax Blog, Nov.2, 2015
- Charles Kinsley, Khoonming Ho and Lewis Lu, FATCA and CRS: the changing landscape of fiscal disclosure, Int'l Tax Rev., Dec. 4, 2015
- U.S. Department of Homeland Security, Inadmissibility of Tax-Based Citizenship Renunciants, Nov. 30, 2015, Fiscal Year 2015 Report to Congress ("[T]he Department of Homeland Security and the Department of State remain committed to continuing to strengthen lines of communication, improve information sharing, and develop more consistent protocols to ensure that both Departments are aware when a renunciant admits that he or she renounced U.S. citizenship for the purpose of U.S. tax avoidance.")
- Peter A. Cotorceanu, Hiding in plain sight: how non-US persons can legally avoid reporting under both FATCA and GATCA, Trusts & Trustees, Vol. 21, No. 10, December 2015, pp. 1050–1063 (Archived copy)
- Tyler R. Murray, Note: The Eighth Amendment and Tax Evasion: Whether FATCA Non-compliance Fines are Excessive, 24 Wm. & Mary Bill of Rts. J. 553 (2015)
- Penalties for the Failure to Report Foreign Financial Accounts and the Excessive Fines Clause of the Eighth Amendment, by Matthew A. Melone, 23 Geo. Mason L. Rev. 337 (2015)
- Carlos Otavio Ferreira de Almeida, International Tax Cooperation, Taxpayers' Rights and Bank Secrecy: Brazilian Difficulties to Fit Global Standards, 21 L. & Bus. Rev. Am. 217 (2015)
- Gabriel Zucman, The Hidden Wealth of Nations: The Scourge of Tax Havens (2015)
- Jane G. Song, Comment: The End of Secret Swiss Accounts?: The Impact of the U.S. Foreign Account Tax Compliance Act (FATCA) on Switzerland's Status as a Haven for Offshore Accounts, 35 NW. J. Int'l L. & Bus. 687 (2015)
- Zac DeLap, Too Much Collateral Damage, FATCA: The Well-Intentioned, Yet Misguided and Unconstitutional, Tax Law, 35 J. Nat'l Ass'n L. Jud. 212 (2015)
- Eric J. Snyder, FATCA and the broader tax crackdown, 21 Trusts & Trustees 596 (2015)
- Stephen Phua, Convergence in Global Tax Compliance, 2015 Singapore J. Leg. Stud. 77
- Bruce W. Bean and Abbey L. Wright, The U.S. Foreign Account Tax Compliance Act: American Legal Imperialism?, 21 ILSA J. Int'l & Comp. L 334 (2015) (Archived copy)
- Ann C. Kossachev, "Worldwide Taxation and FATCA", 25 Geo. Mason U. Civ. Rts. L. J. 217 (2015) (Archived copy)
- Yvonne Woldeab, Comment: "Americans: We Love You, But We Can't Afford You": How the Costly U.S.-Canada FATCA Agreement Permits Discrimination of Americans in Violation of International Law, 30 Am. U. Int'l L. Rev. 611 (2015)
- "International Tax Cooperation, Taxpayers' Rights and Bank Secrecy: Brazilian Difficulties to Fit Global Standards", by Carlos Otavio Ferreira de Almeida 21 L. & Bus. Rev. Am. 217 (2015)
- Peter A. Cotorceanu, "Hiding in plain sight: how non-US persons can legally avoid reporting under both FATCA and GATCA", Trusts & Trustees, Vol. 21, No. 10, December 2015, pp. 1050–1063
- Taylor Denson, "Comment: Goodbye, Uncle Sam? How the Foreign Account Tax Compliance Act is Causing a Drastic Increase in the Number of Americans Renouncing Their Citizenship", 52 Hous. L. Rev. 967 (2015)
- Callyn H. Terveer, "Desperate Times Call for Desperate Measures: The Cost to Multinational Corporations of Implementing FATCA", 15 Hous. Bus. & Tax L.J. 300 (2015)
9. Earlier Articles on FATCA
- Arthur J. Cockfield, "FATCA and the Erosion of Canadian Taxpayer Privacy, Report to the Office of the Privacy Commissioner of Canada", April 2014
- Allison Christians, "Paperwork and Punishment: It’s Time to Fix FBAR", Tax Analysts, Oct. 13, 2014
- Deborah L. Jacobs, "Heirs Left With Unpaid Bills May Inherit More Grief Than Gold", Forbes, June 18, 2014 (FBAR issues; power of attorney; executor obligations; transferee liability)
- Nirav (Jonathan) Dhanawade, "Comment: I Got 99 Problems and They're All FATCA", 35 NW. J. Int'l L. & Bus. 139 (2014)
- Arthur J. Cockfield, "FATCA and the Erosion of Canadian Taxpayer Privacy, Report to the Office of the Privacy Commissioner of Canada", April 2014
- Allison Christians, Avoidance, Evasion, and Taxpayer Morality, 44 Wash. U. J. L. & Pol’y 039 (2014)
- Alicja Brodzka, "The Deadweight Cost of Implementation of the Foreign Account Tax Compliance Act (FATCA)", 4 Nauki o Finansach (Financial Sciences) 11 (2014)
- Marcel Gérard and Lucia Granelli, "Taxing Cross-Border Savings Income, EU Directive and US Fatca", 107 Proceedings. Annual Conference on Taxation and Minutes of the Annual Meeting of the National Tax Association 1 (2014) (Modeling strategy with mathematical proof)
- Michael Kirsch, "Revisiting the Tax Treatment of Citizens Abroad: Reconciling Principle and Practice", 16 Fla. Tax Rev. 117 (2014) (See, esp.: III. The New Era in Global Enforcement and Information Sharing, pp. 140 et. seq.)
- Federal Tax and Form Crimes blog, "No wonder that CBT is here to stay … a conversation with Jack Townsend", Nov. 30, 2014, ("There is a very strong disconnect between how Americans–even the ones that have the intelligence and experience to know better- in the homeland think are the rights and responsibilities of a U.S. citizen abroad and the reality!")
- Tracy A. Kaye. "Innovations in the War on Tax Evasion", 2014 B.Y.U. L. Rev. 363 (2014)
- Kimberly Tan Majure and Matthew R. Sontag, "FATCA and Foreign Retirement Plans: Two Case Studies", The Tax Executive, Jul.-Aug. 2014, p. 185 ("foreign pension funds sit squarely within the definition of 'investment entity' for FATCA purposes")
- Stephan Michael Brown, "One-Size-Fits-Small: A Look at the History of the FBAR Requirement, the Offshore Voluntary Disclosure Programs, and Suggestions for Increased Participation and Future Compliance", 18 Chapman L. Rev. 243 (2014)
- Sean Deneault, Note: "Foreign Account Tax Compliance Act: A Step in the Wrong Direction", 4 Ind. Int'l & Comp. L. Rev. 729 (2014)
- Marc D. Shepsman, "Comment: Buying FATCA Compliance: Overcoming Holdout Incentives to Prevent International Tax Arbitrage", 36 Fordham Int'l L.J. 1767 (2013)
- Frederic Behrens, "Comment: Using a Sledgehammer to Crack a Nut: Why FATCA Will Not Stand", 2013 Wis. L. Rev. 205 (2013)
- Allison Christians, "Symposium article: Tax Advice for the Second Obama Administration: Putting the Reign Back in Sovereign", 40 Pepp. L. Rev. 1373 (2013) (Archived copy)
- Michael Kirsch, "Revisiting the Tax Treatment of Citizens Abroad: Reconciling Principle and Practice", 16 Fla. Tax Rev. 117 (2014)
- New York University School of Law Spring 2015 Colloquium on Tax Policy and Public Finance
- "Criminal Tax Investigations: Civil and Criminal Tax Fraud", 2014 New England IRS Representation Conference, Nov. 21, 2014
- Roberto Succio, "The IRS's Current Offshore Voluntary Disclosure Program: Is This the Only Option Available for An 'Accidental American'?", Diritto e Pratica Tributaria Internazionale, Mar 2014, p. 223 (Archived copy)
- Joint Statement of James M. Cole Deputy Attorney General and Kathryn Keneally Assistant Attorney General, Tax Division, Department of Justice, Before the Permanent Subcommittee on Investigations Committee on Homeland Security and Government Affairs, United States Senate, Feb. 26, 2014 ("Since 2009, the Department has publicly charged 73 account holders and 35 bankers and advisors with violations arising from offshore banking activities. Sixty-one account holders have pled guilty, seven were convicted at trial, and five await trial. Four bankers and financial advisors have pled guilty; many remain fugitives.")
- Joshua D. Blank and Ruth Mason, "Exporting FATCA" (February 1, 2014), 142 Tax Notes, NYU Law and Economics Research Paper No. 14-05 ("Fiscal crisis emboldened the United States to use access to its capital markets as an enforcement mechanism for securing information about domestic taxpayers from foreign institutions. And, in turn, the U.S. passage of FATCA emboldened some of our trading partners to rally behind a new standard of automatic information exchange. Thus, the initial outraged reactions to FATCA among private parties and government officials seem to be shifting to acquiescence by the FFIs, and at least some government officials view FATCA as an opportunity to strengthen their own offshore enforcement.")
- Dennis J. Ventry, Jr., "Not Just Whistling Dixie: The Case for Tax Whistleblowers in the States", 59 Vill. L. Rev. 425 (2014)
- Thomas Slattery, "Taking a Bit out of Crime: Bitcoin and Cross-Border Tax Evasion", 39 Brook. J. Int'l L. 829 (2014)
- Martin Peter Vink, Rainer Bauböck, "Citizenship configurations: Analysing the multiple purposes of citizenship regimes in Europe", 11 Comp. Eur. Pol. 621 (2013) ("Instead of assuming that citizenship laws regulate only the inclusion of immigrants, we assume that such laws are shaped by multiple purposes")
- Jennifer Hepp, "The Pursuit of 'Voluntary' Tax Compliance in a Globalized World", 20 Ind. J. Global Leg. Stud. 449 (2013)
- Alicja Brodzka, "FATCA From the European Union Perspective", 2 J. Governance & Regulation 8 (2013)
- Edward Tanenbaum and Heather Ripley, "International Tax Developments: "FATCA Model 2 Intergovernmental Agreement", Corp. Bus. Taxation Monthly, Feb. 2013, p. 7
- Georges Ugeux, "Should Lex Americana be universal? FATCA turns foreign banks into tax informants", CLS Blue Sky Blog, June 19, 2013 ("Is US foreign policy using all its weaponry, including the FCPA and FATCA to impose a Lex Americana (i.e., American law regime) upon the rest of the world? Shouldn’t the US first look more closely at its own taxation system and corruption? International tax law is in urgent need of modernization with a focus on equity and fairness rather than threat and blackmail.")
- Jessica Dorfmann, "The Cost of United States Citizenship Abroad", Harvard Int'l Rev. (Winter 2013) ("It is ironic that a citizenship so widely desired has come to feel like a burden for so many.")
- Charles P. Rettig, "IRS FBAR Voluntary Disclosure Program: Taxpayer Interviews", Forbes, June 12, 2013 ("It should be anticipated that the IRS will pursue examinations of the amended returns of taxpayers residing in the United States in some manner. … For some [taxpayers with un disclosed foreign accounts] the OVDP or a process of amending prior returns might not be realistic or practical. … Waiting and watching from the sidelines is not a viable option … some form of timely compliance for all is to be encouraged.")
- Susan Morse, "Why FATCA Intergovernmental Agreements Bind the U.S. Government", Tax Notes Int'l, Apr. 15, 2013
- David Leblang, "Harnessing the Diaspora: Dual Citizenship, Migrant Return Remittances" (2013?)
- Hale Sheppard, "Government Wins Second Willful FBAR Penalty Case: What McBride Really Means to Taxpayers with Unreported Foreign Accounts" (2013) Comment by Jack Townsend, "Hale Sheppard Article on Willful FBAR Penalty Cases" (4/26/13) ("[T]he reality is that the U.S. government, after a long period of inactivity and ineffectiveness, has taken significant steps over the past few years to identify and punish failures to file … 'FBARs' as they are commonly known.")
- Symposium article: "Tax Advice for the Second Obama Administration: Putting the Reign Back in Sovereign, by Allison Christians", 40 Pepp. L. Rev. 1373 (2013) (Archived copy)
- J. Richard Harvey, Jr., "Worldwide Taxation of U. S. Citizens Living Abroad Impact of FATCA and Two Proposals", Villanova Public Law and Legal Theory Working Paper Series (2013) ("Although this article addresses both possibilities, my strong suspicion is that Congress will not adopt a residence-based tax system for individuals because of fairness and tax revenue concerns.")
- Rain Levy Minns, "IRS and Prison Sentences: The High Cost of Low Returns" (Apr. 12, 2013)
- Joanna Heiberg, "FATCA: Toward a Multilateral Automatic Information Reporting Regime", 69 Wash. & Lee L. Rev. 1685 (2012)
- Leandra Lederman, "The Use of Voluntary Disclosure Initiatives in the Battle Against Offshore Tax Evasion" (2012). Articles by Maurer Faculty. Paper 800
- Robert W. McGee, ed., "The Ethics of Tax Evasion: Perspectives in Theory and Practice" (2012)
- Kimberly Tan Majure and Matthew R. Sontag, "FATCA: Myths, Mysteries, and Practical Perspectives", The Tax Executive, Jul.-Aug. 2012, p. 315 — Kimberly Tan Majure and Christopher A. Riccardi, "FATCA Myths and Mysteries (Part 2)", The Tax Executive, May-June 2013, p. 101
- Christopher A. Karachale, "Form 5471—The Next FBAR", The M&A Tax Report, Vol. 20, No. 9 (April 2012)
- Vic Abajian, "List of UBS Clients Caught by the IRS" (Jan. 1, 2012)
- Itai Greenberg, "Beyond FATCA: An Evolutionary Moment for the International Tax System" (2012)
- Randall P. Andreozzi and Arlene M. Hibschweiler, "FBAR: Handle With Care", AICPA The Tax Advisor, May 1, 2012
- Jeff N. Mukadi, "FATCA and the Shaping of a New International Tax Order", Tax Notes Int'l, June 25, 2012, p. 1227
- Elizabeth Witzgall, "FBAR Short Statute Procedures", IRS, Oct. 1, 2012
- "HSBC Exposed U.S. Financial System to Money Laundering, Drug, Terrorist Financing Risks", Senate, Permanent Subcommittee On Investigations, July 16, 2012 — Comment, Jack Townsend, "Senate Subcommittee to Report on HSBC Money Laundering" (7/16/12)
- J. Richard Harvey, FATCA - A Report from the Front Lines, Tax Notes, p. 713, August 6, 2012
- Susan Willis McFadden and Kathleen Kavanagh, "Adios, Uncle Sam: Renouncing U.S. Citizenship", 49 Arizona Attorney 12 (2012)
- Bernard Schneider, "The End of Taxation Without End: A New Tax Regime for U.S. Expatriates", 32 Va. Tax Rev. 1 (2012) ("This article proposes that the United States follow the approach of several other countries and eliminate the worldwide taxation of expatriate citizens and LPRs and replace the exit tax on those renouncing U.S. citizenship or relinquishing LPR status with a departure tax regime that would apply to all U.S. citizens and LPRs who emigrate from the United States.")
- Kevin E. Packman, "Foreign Account Reporting Using Form 8938—Has the Service Created Compliance Traps?" (2012) ("While there is nothing illegal or improper about holding foreign accounts and assets, the government continues to increase the level of transparency and compliance required by those holding such assets. The penalties for failing to comply are costly. Even though the monetary cost of not complying with the Form 8938 requirements is far less severe than the FBAR requirement, the ancillary penalties are no mere slap on the wrist. The statute of limitations will not begin to run until the form is filed, there is a six-year statute of limitations if $5,000 of income associated with an SFFA [specified foreign financial assets] is omitted, and a 40% deficiency penalty associated with unreported income from an SFFA.")
- Bruce Zagaris, "International Tax Enforcement Continues to Rise", Tax Analysts, Nov. 30, 2011
- Christopher M. Ferguson, "The Required Records Doctrine: The Fifth Amendment Privilege Under Attack" (2011) ("If the Ninth Circuit's holding in in re MH, 648 F.3d 1067 (9th Cir. 2011)] is permitted to stand, it would not be farfetched to fear that it signals the beginning of the end of the Fifth Amendment privilege as applied to personal records.") But see Jack Townsend appraisal (with list of cases): the Required Records Doctrine is consistently enforced among the circuit courts of appeal.
- Kevin E. Packman, "IRS Renews Its Focus on Unreported Foreign Accounts and Assets: The 2011 Disclosure Program" (2011)
- Scott D. Michel and H. David Rosenbloom, FATCA and Foreign Bank Accounts: Has the U.S. Overreached?, Tax Notes Int'l 709 (May 30, 2011)
- "The UBS Case: The U.S. Attack on Swiss Banking Sovereignty", by Beckett G. Cantley, 7 Brigham Young Univ. Int'l Law & Management Rev. 1 (2011)
- Abraham U. Kannof, "Dueling Nationalities: Dual Citizenship, Dominant and Effective Nationality, and the Case of Anwar al-Aulaqi", 25 Emory Int'l L. Rev. 1371 (2011)
- Melissa A. Dizdarevic, "The FATCA Provisions of the Hire Act: Boldly Going Where No Withholding Has Gone Before", 79 Fordham L. Rev. 2967 (2011)
- IRS, "Recent Research on Tax Administration and Compliance", Selected Papers Given at the 2010 IRS Research Conference (June 29-30, 2010)
- Reuven S. Avi-Yonah, "The Case against Taxing Citizens", Law & Economics Working Papers, University of Michigan Law School Scholarship Repository (2010)
- Baker & McKenzie Voluntary Disclosure Steering Committee, "Experiences With the 'New' Voluntary Disclosure Program—Some Good, Some Bad" (2010) ("As it currently stands, the financial cost of coming forward is incredibly high and, except in the case of a few very specific taxpayers, the risk of being caught and prosecuted is very low.")
- Hale E. Sheppard, "IRS Giveth and DOJ Taketh Away: Recent Opinion Jeopardizes Retroactive FBAR Relief" (2010)
- Kevin E. Packman and Mauricio D. Rivero, "Increased Disclosure, Penalties, and Audit Periods Courtesy of the Foreign Account Tax Compliance Act" (2010) ("It is clear that FATCA, the latest congressional effort to stanch tax evasion, will prove to be burdensome. How U.S. taxpayers, foreign entities and financial organizations deal with the burdens remain to be seen.")
- Bruce Zagaris, "International White-Collar Crime: Cases and Materials" (2010)
- Maarten P. Vink, Gerard-René de Groot, "Birthright Citizenship: Trends and Regulations in Europe" (November 2010)
- Michael Galligan, Laura Schiller, "On United States Tax Effects of a Hindu Undivided Family", Oct. 2010 (Archived copy)
- Jeffrey Friedman and Michael L. Colavito, Jr., "Waive or Walk: Considerations for Extending the Statute of Limitations", Tax Analysts, Nov. 1, 2010, p. 349
- Kevin E. Packman, "Noncompliance after the IRS offshore income reporting initiative—what options remain?" (2009) ("Taxpayers should be aware that the Service intends to continue its focus on enforcement, a direction reinforced by both the President and Congress.")
- Timothy V. Addison, "Shooting Blanks, The War on Tax Havens', 16 Ind. J. Global Legal Stud. 703 (2009)
- Dept. of Justice Press Release, "U.S. Discloses Terms of Agreement with Swiss Government Regarding UBS" (Aug. 19, 2009)
- Dept. of Justice, "Offshore Tax-Avoidance and IRS Compliance Efforts" (2009) (listing cases)
- "Offshore Bank Account Problems" (List of UBS clients prosecuted), Jan. 24, 2012
- "FBAR Enforcement—Five Years Later", by Steven Toscher and Michel R. Stein, J. Tax Practice & Proc., June-July 2008, p. 37
- Kevin E. Packman, "The Tax Rules Just Changed: Emotions Aside, Does Expatriating Make Financial Sense?" (2008) ("The HEART legislation provides significant benefits to veterans. To offset the approximate $1.2 billion price tag of those benefits, the HEART legislation … created … legislation [which] is expected to raise $600 million by subjecting all new expats to a mark-to-market exit tax. Additionally, new Section 2801 subjects U.S. recipients of gifts and bequests from expats to gift or estate tax.")
- Kevin E. Packman, "Significant New FBAR Developments from IRS and the Tax Court" (2008) ("The FBAR related questions run several pages. Taxpayers should understand that if dealing with the IRS alone, they could inadvertently make an admission that will later be used against them in a criminal matter. They also should realize that the innocuous questions can be followed up with the more aggressive approach.")
- John Paul, "The Future of FATCA: Concerns And Issues", 37 N.E.J. of Leg. Stud. 52 (2008) ("While tax evasion is an enormous problem, FATCA is not a solution to the problem.")
- Reuven S. Avi-Yonah, "International Tax as International Law: An Analysis of the International Tax Regime" (2007)
- Michael S. Kirsch, Taxing Citizens in a Global Economy, 82 N.Y.U. L. Rev. 443 (2007) ("The tax treatment of overseas citizens in the past century and a half reflects changing perceptions of citizens abroad and their relationship with the United States, as well as the changing role of the United States in world economic affairs.")
- Michael S. Kirsch, "The Tax Code as Nationality Law", (2006) ("This Article questions the frequently asserted axiom that Congress's taxing power knows no bounds. It does so in the context of recently enacted legislation that creates a special definition of citizenship that applies only for tax purposes.")
- Hale E. Sheppard, "Evolution of the FBAR: Where We Were, Where We Are, and Why It Matters", 7 Hous. Bus. Tax J. 1 (2006) (Archived copy) — Links to other articles by Hale Sheppard
- Andrew Walker, "The Tax Regime for Individual Expatriates: Whom to Impress?", 58 Tax Lawyer 555 (2005) ("Given the competing domestic tax policy goals, international tax norms, and enforcement difficulties described above, is an expatriate tax regime that perfectly reconciles these concerns possible? The answer is, of course, no. Nevertheless, a more rational system than those that have been enacted or proposed is conceivable. The outlines of such a regime are tentatively suggested below.")
- U.S. Department of Justice Tax Division Judgment Collection Manual (May 2004)
- International Consortium of Investigative Journalists, "The mystery of the fleeing Americans" (Dec. 6, 2003) ("Why are so many Americans suddenly so eager to cut their ties with Uncle Sam")
- USABulletin, "Money Laundering", June 1999
- T.N. Pamndey, "Constituting Hindu undivided family property nucleus through gifts", 234 Income Tax Rep. 9 (1998)
- "Tax Treatment of Expatriated Citizens", Hearing before the Committee on Finance, United States Senate 104th Congress (1995); Cong. Record, Apr. 6, 1995 ("Amendment No. 448 to Amendment No. 420 (Purpose: To state the sense of the Senate regarding tax avoidance by certain former citizens of the United States)"); renunciants labeled "super-rich traitors" by Congressman Dick Durbin, Cong. Record, Mar. 30, 1995, p, 1.
- Stephen A. Saltzburg, "The Required Records Doctrine: Its Lessons for the Privilege Against Self- Incrimination", 53 U. Chi. L. Rev. 6 (1986) ("In 1951 Professor Meltzer observed that the privilege against self-incrimination must be assessed against the regulatory system that a nation adopts.'" Thus, far the cases have proved him correct.")
- Richard Pomp, "The Experience of the Philippines in Taxing Its Nonresident Citizens", 17 N.Y.U. J. Int'l L. & Pol. 245 (1984-1985) (Iryn S. Yap-Balmores (2012): "With the passage of RA 8424 [of 1998], however, nonresident citizens became subject to tax only on their income from Philippine sources. Only resident citizens are taxed on their worldwide income.")
- Ruth Donner, The Regulation of Nationality in International Law, 2nd ed. (1994)
- Craig M. Bradley, "Racketeering and the Federalization of Crime", 22 Am. Crim. L. Rev. 213 (1984)
- Paul Weis, Nationality and Statelessness in International Law (1979)
- Joseph W. Dellapenna, "The Citizenship of Draft Evaders after the Pardon", 22 Vill. L. Rev. 531 (1976).
- United Nations, Women, Nationality and Citizenship (2003); Convention on the Nationality of Married Women, 1957
- "Extraterritorial Antitrust Enforcement: The American Banana Case a Half Century Later", 26 Fordham L. Rev. 319 (1957)
FATCA has a few professional supporters; their tendency is to ignore its impact on persons whose center of economic and family life is abroad and who may never have set foot in the United States since birth: notably Prof. Elise J. Bean, and Sen. Carl Levin, on whose staff she worked. The issue addressed by many of the commentators cited here is that there is a distinction between U.S. resident taxpayers who have concealed untaxed income abroad and those living abroad whose level of sophistication and income is such that they cannot be expected to know, and cannot afford to buy, the skills needed to avoid the draconian penalties for non-declaration fixed by the Congress. The following support FATCA as an enforcement tool:
- Elise J. Bean, "Financial Exposure: Carl Levin's Senate Investigations Into Finance and Tax Abuse" (2018)
- Young Ran (Christine) Kim, "Considering 'Citizenship Taxation': In Defense of FATCA", 20 Fla. Tax Rev. 335 (2017) ("[T]his article aims to defend the administrability of citizenship taxation in conjunction with new reporting obligations.")
- Clark Gascoigne, "Offshore Tax Haven Lobby Makes Push to Defend Tax Evaders", FACT Coalition, Mar. 27, 2017 — Fact Coalition, "Just the FACTs: April 12, 2017" — Criticized by "Campaign to Repeal FATCA": James George Jatras, "Destructive ‘fat cat’ tax law a complete flop. It's time to repeal it", The Hill, Apr. 26, 2017
- Institute on Taxation and Economic Policy, "Foreign Account Tax Compliance Act (FATCA): A Critical Anti-Tax Evasion Tool", May 2017 (Archived copy)
- Chris Matthews, "FATCA Will Help Catch Tax Cheats, Not Lead to the Dollar’s Collapse", Fortune, June 25, 2014 ("By helping the government to find the people who aren’t paying what they owe, the rest of us can either enjoy greater services or reduced taxes. And that’s something we should all get behind.")
- Margaret Kent and Robert Feinschreiber, "How the Ultra-Right Extremists Attack FATCA", Corp. Bus. Taxation Monthly, Sept. 2013, p. 23
10. Significant Recent Cases
- Bittner v. U.S., 143 S.Ct. 713 (2023)
- Certiorari from Court of Appeal, 19 F.4th 734 (5th Cir. 2021) and District Court 469 F.Supp.3d 709 (E.D. Tex. 2020)
- Oral argument, case documents from Oyez.org
- SCOTUSBlog case documents
- Bittner Expert Report
- United States’ Response In Opposition To Amended Amicus Brief In Support Of Defendant’s Motion For Partial Summary Judgment.
- Defendant Alexandru Bittner’s Sur-Reply To The United States’ Reply To Defendant’s Response To Plaintiff’s Motion For Partial Summary Judgment
- United States’ Response In Opposition To Amended Amicus Brief In Support Of Defendant’s Motion For Partial Summary Judgment
- Defendant Alexandru Bittner’s Reply To The United States’ Response To Defendant’s Motion For Partial Summary Judgment
- United States’ Sur-Reply To The Amicus Reply To The United States’ Response To Bittner’s Motion For Partial Summary Judgment
- Government Memorandum In Support Of Motion For Summary Judgment
- United States’ Motion To Strike The Expert Testimony And Report Of Scott D. Michel
- United States’ Reply On Its Motion For Partial Summary Judgment
- Defendant Alexandru Bittner’s Motion To Compel Discovery Responses
- United States’ Motion For Partial Summary Judgment
- Amended Amicus Brief In Support Of Alexandru Bittner’s Motion For Partial Summary Judgment
- Defendant Alexandru Bittner’s Motion For Partial Summary Judgment
- United States’ Response To Defendant’s Motion For Partial Summary Judgment
- Defendant Alexandru Bittner’s Response To The United States’ Motion For Partial Summary Judgment
- Brief Of the American College of Trust And Estate Counsel As Amicus Curiae In Support Of Neither Party
- Brief for the Petitioner
- Brief For the Respondent Government
- Brief For the Chamber of Commerce of the United States of America As Amicus Curiae Supporting Petitioner
- Joint Appendix on Writ of Certiorari
- Brief of Amicus Curiae of National Whistleblower Center Supporting Respondent Government
- Brief of the American College of Tax Counsel as Amicus Curiae in Support of Petitioner
- Expert Report of Scott D. Michel
- United States' Motion in Limine
- Brief of Center for Taxpayer Rights as Amicus Curiae in Support of Petitioner
- CRS Report for Congress: Supreme Court Rules Against IRS on Foreign Account Reporting Penalties
- Bittner v. IRS, 120 AFTR 2d 2017-5633 (W.D. Tex. 2017), Report And Recommendation Of The United States Magistrate Judge
- Comment, Jim Dawson, Chad Vanderhoef, Alexander Olama, Bloomberg Tax, Mar. 7, 2023: Supreme Court’s FBAR Ruling Skips Crucial Legal Question for Now (1) (Mar. 7, 2023) (Archived copy) ("The majority and dissenting opinions in Bittner v. United States relied on traditional canons of statutory construction to reach opposite conclusions, but it left a key issue unanswered—the appropriate standard as to mens rea.")
- Comment N.J. Law J.: Finally, a Taxpayer Victory in an FBAR Penalty Case—But Will It Change Anything? (Mar. 24, 2023) (Archived copy)
- Salley v. U.S., 2023 WL 3568618 (M.D. Fla. 2023): "Bittner v. United States, 143 S. Ct. 713, 724–25 (2023), applied the rule of lenity to construe an ambiguous statute criminalizing the willful failure to notify the Secretary of the Treasury about banking transactions in a foreign country. Only two justices adopted the section of the opinion which applies the rule of lenity."
- Aroeste v. U.S., 2023 WL 1974144, 2023 US Dist LEXIS 24397, 131 A.F.T.R.2d 2023-623
Order on Joint Discovery Motion
U.S. Tax Court, May 16, 2022 (Casetext version)
- Bedrosian v. U.S., 42 F.4th 174 (3rd Cir. 2022)
Earlier judgment: 912 F.3d 144 (3rd Cir. 2018)
Dist. Court: 2017 WL 3887520, 2017 U.S. Dist. LEXIS 56535 (E.D. Pa. 2017)
505 F.Supp.3d 502 (E.D. Pa. 2020)
Zhanna Ziering Speaks to Tax Notes on Bedrosian and DeMauro
Petition for Writ of Certiorari
James A. Beavers, Counsel’s admission costly to taxpayer in FBAR case, The Tax Advisor, Oct. 1, 2022
- Zachary C. Kling, Jennifer Lee, Peter Glicklich, Michael H. Lubetsky, Federal Courts Weigh in on the FBAR: Providing Relief from Outrageous Penalties (March 22, 2023)
11. Federal Cases Mentioning "FBAR"
(Federal cases mentioning “FBAR” in alphabetical order by name of defendant or significant party.)
These are civil and criminal cases, from searches on LexisNexis, Westlaw and among DOJ Press Releases, with supporting documents from PACER (Archived copy) and RECAP. A list of 170 civil FBAR cases was collected by Jack Townsend from data provided by DOJ Tax, presented as an Excel spread sheet) (Archived version) (Jack Townsend discussion, "Data Table and Statistics on FBAR Penalty Civil Litigation (5/19/18)"). Only a few of those civil cases are included in the list below, notably U.S. v. Jane Boyd, concerning the calculation of non-willful penalties against a California resident who, apparently, had worked in the U.K. and probably accumulated there private pension savings (SIPP) or U.K.-tax-sparing savings (ISA) or both. She may also have faced PFIC tax issues not apparent in the court papers. Note that very few of these cases involve party’s resident abroad; the exceptions seem to be those with a substantial U.S. connection, sometimes involving voluntary presence or court appearance, perhaps for business, family, or strategic reasons. Thus (non-exclusively): Barrett, Cambata, Dewees, Katholos, Pomerantz and certain Swiss bankers and enablers. The interrelationship between the FBAR statute of limitation, first FBAR filing, and commencement of U.S. residence is worth noting. The countless instances where noncompliant taxpayers resolved issues within an IRS amnesty program or by voluntarily paying an assessed penalty are not reflected here. FATCA has in effect "privatized" enforcement to the extent that overseas U.S. Persons are (or will be) denied financial services by foreign-based providers without proof (or declaration) of status and/or compliance. See also, AARO Banking Committee Chair, Paul Atkinson, "FBAR and other financial reporting cases" (Archived copy). These are, of course, only cases that were contested. In tens of thousands of instances taxpayers settled directly with the IRS or successfully used the IRS via OVDP or Streamlined programs. And there must be many more absconders and fugitives than open records show, including cases of sealed indictments, unpaid assessments, unpublished default judgments and inability to serve process on a tax debtor. (The Mrvc case below is an example.). Some Russian and Saudi Arabian citizens (or dual nationals) have notoriously avoided leaving their country.
- In re Grand Jury Subpoena, Dated March 21, 2018 (9th Cir. 12/28/18) — Comment, Jack Townsend, "Ninth Circuit Rejects Spousal Testimonial Privilege for Foreign Bank Records" (1/4/18)
- In re Special February 2011-1 Grand Jury Subpoena, 852 F. Supp. 2d 1020 (N.D. Ill. 2011) ("subpoena in addition to seeking T.C.'s testimony compels him to produce 'any and all' of his foreign financial account records")
- U.S. v. Harry J. Abrahamsen, D. N.J., Case 10-254 — Docket — Criminal Information — Plea Agreement — Judgment — Order setting conditions for release — Comment, Jonathan Stempel, "NJ father, daughter sentenced in UBS tax fraud case", Reuters, May 24, 2011 — DOJ Press Release Comment, Jack Townsend, "Another UBS Client is Sentenced - 1 Yr Home Detention" (5/24/11) (Harry Abrahamsen) — Comment, Jack Townsend, "Another UBS Client is Sentenced to Probation" (5/23/11) (Lucille Abrahamsen Jackson)
U.S. v. Abrahamsen, D. N.J. Case 13-7508 — Docket — Order (Default judgment)
U.S. v. Lucille Abrahamson Jackson — DOJ Press Release, "New Jersey Ubs Client Sentenced To Probation For Failing To Report Over $750,000 In Swiss Bank Account", May 23, 2011
- U.S. v. Adami, Agustoni, Bergantino and Schaerer (of Credit Suisse), E.D. Va. Case 11-cr-95 — Indictment — Comment, Lynnley Browning and Julia Werdigier, "U.S. Accuses Four Bankers Connected to Credit Suisse of Helping Americans Evade Taxes", N.Y. Times, Feb. 23, 2011 — DOJ Press Release, "Credit Suisse Pleads Guilty to Conspiracy to Aid and Assist U.S. Taxpayers in Filing False Returns. Bank Admits to Helping U.S. Taxpayers Hide Offshore Accounts from IRS; Agrees to Pay $2.6 Billion, Highest Ever Payment in a Criminal Tax Case Investigation Has Also Led to Indictment of Eight Credit Suisse Employees since 2011", May 19, 2014
- Ades v. U.S., 2020 U.S. Dist. LEXIS 251828. 2020 WL 8832502 (E.D. Tex.); 2021 U.S. Dist. LEXIS 248994, 2021 WL 6274738 (N.D. Tex.)
- U.S. v. Ahuja, E.D. Wis. Complaint — Other case documents (Archived copy) — Comments, Jack Townsend, "Superseding Indictment for Dr. Ahuja Adding Conspiracy Count" (9/28/11) — "Prominent Neurosurgeon Convicted for Offshore Accounts" (8/23/12) — "FBAR Collection Suit Against Person Convicted of Willfully Failing to File FBAR" (12/11/18) — Comment, Robert W. Wood, "Can Foreign Account Nondisclosure Be A Conspiracy?" — Comment, Kunal Patel, "IRS sues taxpayer to collect on $5M FBAR penalty"
- United States v. All Assets Held at Bank Julius Baer & Co., 772 F. Supp. 2d 205 (D. D.C. 2011)
- U.S. v. All Assets Held at Bank Julius Baer & Co., 116 AFTR 2d 2015-6650 (D. D.C. 2015)
- U.S. v. Almog, 2012 WL 2375838 (C.D. Cal.) ("In order to further conceal the Clients' ownership and control over the assets in the undeclared bank accounts, defendants … would cause the Clients to fail to prepare and file FBARs with the Department of the Treasury concerning the Clients' foreign financial accounts at Bank A Luxembourg and Bank B Switzerland-Luxembourg Branch.") — Docket — Complaint — Indictment — First Superseding Indictment — Case Summary — Trial Memorandum — Comment, Reuters, "Tax preparers charged using Israel bank for fraud", June 15, 2012 — DOJ Press Release, "Tax Return Preparers Sentenced to Prison for Hiding Offshore Account and Assisting Wealthy Clients to Hide Millions in Secret Accounts at Israeli Banks", Aug. 10, 2015 — See also U.S. v. Kalai below
- Alsheikh v. Lew, 2016 WL 1394338; 2016 WL 4426960 (N.D. Cal.) ("Plaintiff Abdullah Saleh Alsheikh, a U.S. citizen in Saudi Arabia, alleges that certain provisions of the Foreign Account Tax Compliance Act, 26 U.S.C. §§ 1471–74, are unconstitutional. The government moves to dismiss Plaintiff's Amended Compliant on several grounds, including Article III standing.")
- U.S. v. Amato, D. N.J. Case 18-cr-561 — Docket — Criminal Information — Plea Agreement — Judgment — DOJ Press Release, "Former Ocean County Chiropractor Admits Income Tax Evasion and Failure to File Report of Russian Bank Account" — WOBM TV, "Lakewood chiropractor to spend 20-years in jail for money laundering, tax evasion" (May 13, 2009)
- U.S. v. Keith E. Anderson, 472 F.3d 662 (9th Cir. 2006) (Extradition for "conspiracy to defraud the United States, conspiracy to commit mail and wire fraud, aiding and assisting the filing of materially false income tax returns, mail fraud, wire fraud, conspiracy to commit money laundering, and international money laundering." "Anderson contends that his convictions and sentence should be reversed because his appeal of the annulment of his Costa Rican citizenship was pending in Costa Rica when he was extradited to the United States to stand trial for the above-listed offenses. Therefore, he asserts the district court lacked personal jurisdiction over him.")
- Angle v. Comm'r, T.C. Memo. 2016-27, Feb. 22, 2016 (innocent spouse, collection due process, attorney's fees)
- Aroeste v. U.S., 2023 WL 1974144, 2023 U.S. Dist. LEXIS 24397 (S.D. Cal.) — Docket — Complaint — ("On September 26, 2022, the District Court partially stayed this case pending the Supreme Court's resolution of United States v. Bittner, 19 F.4th 734 (9th Cir. 2021), cert. granted 142 S. Ct. 2833, on grounds the Bittner decision will control the monetary penalties allegedly owed by plaintiffs. Notwithstanding the stay, the parties are permitted to litigate the following two issues: '(1) whether Alberto Aroeste was a resident of Mexico under the United States — Mexico income tax treaty; and (2) [whether Alberto was] a "United States person" required to file a Report of Foreign Bank and Financial Accounts (FBAR) for 2012 and/or 2013.'" … Based on the Court's reading of the controlling law, the Court OVERRULES defendant's objection that considerations of the Treaty are legally irrelevant to this lawsuit. Accordingly, if the administrative record is factually relevant and proportional to determining Mr. Aroeste's residency status under the Treaty (and to assessing whether Mr. Aroeste was a 'United States person' for any other reasons), it is discoverable.") Comment, Virginia La Torre Jeker, Mar. 2, 2023, "Treaty Tie-Breaker is an FBAR Escape Hatch, Says the Court!" — BDO Global comment, Mar. 23, 2023, "Articles: United States - U.S. district court outlines possible exemption for treaty non-resident from FBAR filing requirement" — Freeman Law comment, Feb. 22, 2023, "Does a Treaty Govern FBAR Reporting Obligations: A Federal Court Answers 'Yes'"
Aroeste v. U.S., U.S. Tax Court cases: Alberto Aroeste Docket No. 13024-20, 11/09/20 and Estela Aroeste, Docket No. 15372-20, 11/09/20 (Feb. 23, 2023: Motion for continuance granted). The case raised an important issue of the relevance of U.S. Person status (citizenship or permanent residence), actual non-residence in a Treaty country where the treaty enumerates the criteria for tax residence) for purposes of FBAR enforcement under 31 U.S.C. § 5321(a)(6), 31 CFR § 1010.350.
- L'Association des Américains Accidentels v. Dept. of State, __ F.Supp.3d __, 2023 U.S. Dist. LEXIS 23360, 2023 WL 1963921 (D.D.C.), Appeal filed D.C. Cir., Feb. 16, 2023 ("Advocacy group and individuals seeking to renounce their American citizenship brought action alleging that State Department's final rule finalizing citizenship renunciation processing fee violated Administrative Procedure Act (APA) and customary international law, and that imposition of any fee violated Fifth, First, and Eighth Amendments. Government moved to dismiss, and parties filed cross-motions for summary judgment.")
- Awad v. Comm'r, T.C. Memo. 2017-108, June 8, 2017 (whistleblower)
- U.S. v. Ayyad, 2021 U.S. Dist. LEXIS 114538 (D. Md. 2021) (Undeclared accounts in Jordan. "The Government seeks FBAR penalties against Ayyad in the amount of $1,448,432 plus interest and penalties.")
- U.S. v. $4,656,085.10 in Bank Funds, 2014 U.S. Dist. LEXIS 20703 (C.D. Cal. 2014) ("The Government contends, and Mr. Brander admits, that his purpose in moving the funds to Panama was to conceal them from his wife.")
- U.S. v. Bank Julius Baer & Co, Case 16-00886 (S.D. N.Y. 2016) (Deferred prosecution agreement). Comment, Robert W. Wood, Forbes, Feb. 4, 2016, “Bank Julius Baer Hit With $547M Criminal Tax Evasion Penalty, Two Bankers Plead Guilty”
- U.S. v. Badreg, 120 AFTR 2d 2017-6227, 2017 WL 4685252 (M.D. Fla. 2017)
U.S. v. Badreg, 120 AFTR 2d 2017-6230 (M.D. Fla. 2017)
- U.S. v. Baravarian, C.D. Cal. Case 14-cr-248 — Docket — Indictment — Judgment of acquittal by jury — Comment, Edvard Pettersson and David Voreacos, "Ex-Mizrahi Banker Said to Be Indicted in U.S. Tax Fraud Case" Comment, Jack Townsend, "Mizrahi Tefahot U.S. Banker Indicted for Enabling Offshore Accounts" (4/31/14) — Comment, Wilson Tax Law Group, "California Jury Acquits Banker of Conspiracy to Defraud Using Offshore Bank Accounts" ("Shokrollah Baravarian, 82, was acquitted of charges of conspiring to defraud the U.S. and helping Mizrahi clients prepare false tax returns.") — DOJ Press Release, "California Banker Charged with Helping U.S. Taxpayers Conceal Secret Israeli Bank Accounts" (Archived copy)
- U.S. v. Adrian Baron (U.S. v. Kyriacou), E.D. N.Y. Mar 20, 2018, case Cr. No. 18-102 (S-1) — Docket — Superseding indictment — DOJ in press release emphasized FATCA; basic issue is securities fraud ("pump & dump"; secret offshore accounts & trading). — Extradition — Docket — Comment, Jack Townsend: "Foreign Bank Enabler Pleads Guilty to FATCA Crime Based on Undercover Operation" (9/11/18) — (Adrian Baron was extradited to the United States from Hungary in July 2018. — Searchlight, Sept. 18, 2008, "Vincential is first person to be convicted for failing to comply with FATCA" — Comment, Stack Exchange, Skeptics, "Did a non-US Hungarian citizen get extradited to the United States for not reporting an American customer of his bank?"
- U.S. v. Arvind Ahuja, E.D. Wis. Case 11-cr-135 — Docket — Indictment —Sentencing Memorandum — Transcript, Sentencing Hearing — Judgment —DOJ Press Release, "Wisconsin Neurosurgeon Convicted of Filing False Tax Return and Failing to File Report of Foreign Bank Accounts. Doctor Hid $8 Million in Secret Offshore Accounts in India." Aug. 23, 2012 — Comment, Baker Hosteller, "Indian American Neurosurgeon Sentenced to Probation for Unreported Offshore Bank Accounts", JD Supra, May 21, 2013 Comment, Jack Townsend, "Another Indictment with Allegations Reputedly of Activity by HSBC and Its Bankers" (Feb. 2, 2011)
- U.S. v. Baravarian, C.D. Cal., Case 14-cr-248 — Docket — Indictment — Judgment
- U.S. v. Baroni, Case 16-cv-02980, Apr. 12, 2016 — Docket — Complaint,— Judgment, E.D. La., Mar. 14, 2017 — Complaint, S.D. Idaho, May 3, 2018 (Accuracy-related penalty, FBAR)
- U.S. v. Barouh, S.D. Fla. Case 10-cr-20034 — Docket — Criminal Information — Statement of Facts — Amended Judgment — IRS, Offshore Tax-Avoidance and IRS Compliance Efforts, ("Feb. 4, 2010: Jack Barouh of Golden Beach, Fla., pleaded guilty to filing a false tax return. Barouh admitted to filing a false tax return for 2007 in which he failed to report a foreign bank account. He was sentenced to 10 months in prison and ordered to pay all taxes, interest and penalties due and owing.") — DOJ Press Release, "Former UBS Client Pleads Guilty to Hiding $10 Million in Offshore Bank Accounts. Defendant Skimmed Proceeds from His Watch Businesses to Fund Secret Accounts." — Comment, Jack Townsend, "Another UBS Depositor Pleads" (Feb. 5, 2018) — Comment, Phil Hodgen, "Why the Voluntary Disclosure Program is off the rails and how to fix it" (Feb. 5, 2010)
- U.S. v. Barrett, D. Colo. Case 10-cv-02130, Writ Ne Exeat Republica — Docket — Emergency Order, Dec. 2, 2010 — Recommendations of Magistrate Judge — Order, Aug. 13, 2013 — Order, Jan. 29, 2014 — Order, Apr. 21, 2014 — Comment, Jay Adkisson, "A Wedding And The Writ Of Ne Exeat Republica", Forbes, Feb 7, 2014
- U.S. v, Beck, S.D. N.Y. Case 12-cr-211 — Docket — Indictment — Comment, Jack Townsend, "Another Swiss Enabler Indicted (3/14/12)" ("Beck Verwaltungen AG, an independent investment advisory and asset management firm in Zurich, Switzerland with no offices in the U.S. … [c]onspired with U.S. persons to hide Swiss financial accounts and income via false and fraudulent income tax returns.")
- U.S. v. Bedrosian, 505 F.Supp.3d 502 (E.D. Pa. 2020) ("This Court, after review of the evidence, concludes that it must use a more expansive concept of willfulness that includes reckless conduct considered from an objective point of view.") — Subsequent matters: Bedrosian v. U.S., 42 F.4th 174 (3rd Cir. 2022) — Cert. petition (No. 22-598) — Supreme Court Docket — Brief of Center For Taxpayer Rights as amicus curiae in support of petitioner — Brief of DOJ (May 2023) (Archived copy)
U.S. v. Bedrosian, Case 2:15-cv-05853-MMB (E.D. Pa. Sept. 20, 2017) — Comment: Ed Zollars, "Taxpayer Found Not to Have Willfully Filed Erroneous FBAR Report"
Bedrosian v. U.S., 912 F.3d 144, 2018 U.S. App. LEXIS 36146 (3rd Cir. Dec. 21, 2018) — Prior history: 2017 WL 4946433, 120 A.F.T.R.2d 2017-5832 (E.D. Pa. Sept. 20, 2017) — Order on Cross Motions for Summary Judgment (Apr. 13, 2017) — Comment, Ed Zollars, "Taxpayer Found Not to Have Willfully Filed Erroneous FBAR Report" (Archived copy) — Comments, Jack Townsend, "Bedrosian on Appeal; Interesting and Potentially Important Opinion on Jurisdiction in FBAR Penalty Cases" (12/21/18; 1/10/19) and "Court Denies Cross Motions for Summary Judgment on FBAR Willful Penalty" (4/13/17) (with links to case documents) — Opinion, Sept. 25, 2018 ("watering down willfulness standard") — Comment, Procedurally Taxing Blog, "Like the First Amphibian Crawling Out of the Swamp onto Land, the Flora Rule Emerges from Title 26 to Possibly Infest Title 31" — Comment, Ronald Marini, "1st Taxpayer Victory in a "Willful" FBAR Penalty Case Overturned at Appeals" — Robert Goulder, "FBAR Penalties: Does Bedrosian Deserve Certiorari?", Tax Notes, June 19, 2023 — Hale E. Sheppard, "Court Overturns Legendary FBAR Case, Bedrosian, but Settlement Elsewhere Encourages Taxpayers with Foreign Account Issues", CCH Int. Tax J., Jan-Feb. 2021, p. 37
Bedrosian v. C.I.R., 143 T.C. 83 (2014).
- U.S. v. Berg, N.D. Cal. Case 12-877 —Docket — Criminal Information — Judgment — DOJ Press Release — Comment, Jack Townsend, "Another Sentencing of UBS Client" (2/27/14)
- U.S. v. Berkovic, S.D. N.Y. Case 17-cv-08304 — DOJ Press Release, "The U.S. Attorney's Office and IRS remind people that violating tax laws can bring serious consequences"
- U.S. v. Berlinka, Frei and Keller, S.D. N.Y. Case 12-cr-2 (Client advisors at Bank Wegelin, Zurich) — Indictment — DOJ Press Release, "Manhattan U.S. Attorney charges three Swiss bankers with conspiring to hide more than $1.2 billion in U.S. taxpayer accounts from the IRS" (Michael Berlinka, Urs Frei, and Roger Keller)
- U.S. v. Bernstein, 486 F.Supp.3d 639 (E.D.N.Y. 2020) UBS clients. Civil FBAR willful penalty collection action.
- U.S. v. Beverly, 2022 U.S. Dist. LEXIS 219719 (C.D. Cal.) (FBAR penalty enforcement: "Defendants had financial interest in various foreign accounts, including accounts held in Bermuda and Barbados." "[T]his Court has subject matter jurisdiction"). Prior history: U.S. v. Beverly, 2020 U.S. Dist. LEXIS 89826 (C.D. Cal.) (Requiring defendants to produce books and records)
- U.S. v. Bhasin, E.D. N.Y. Case 11-268 — Docket — Information Sheet — Information — Memorandum of Decision and Order — Judgment — Comment, The Indian Express, "Indian-origin woman in US pleads guilty to tax evasion" (Apr. 14, 2011) — Comment, Jack Townsend, "HSBC India Depositor Sentenced" (3/18/13)
- U.S. v. Bian, W.D. N.C., Case 19-cr-191 — Docket — Criminal Information — Factual Basis for Plea Agreement — DOJ Press Release, "Chinese National Pleads Guilty For Failing to Report A Foreign Bank Account" — Comment, Morelaw, United States of America v. Lili Bian
- U.S. v. Birkenfeld, S.D. Fla. Case 08-cr-60899 — Indictment — Docket — Statement of Facts — Transcript of Original Hearing and Bond Hearing — Transcript of Sentencing — Sentencing Memorandum — Judgment — Motion for Termination of Supervised Release — Comment, Pogo.org, "U.S. and Swiss groups protest sentencing of UBS whistleblower", Aug. 20, 2009 — Comments, Jack Townsend, "The Birkenfeld Prosecution, Conviction and Sentence" (11/13/17) and "Birkenfeld is Tax Analysts Person of the Year" (1/1/2010) — DOJ Press Release, "Former UBS Banker Sentenced to 40 Months for Aiding Billionaire American Evade Taxes" (Aug. 21, 2009) — Comment, Corbin Hiar, "Where Have All the Whistleblowers Gone?", Mother Jones, Mar. 12, 2010 ( "By sending UBS informant Bradley Birkenfeld to prison, did the Obama Justice Department discourage more financial insiders from exposing malfeasance?") — Brad Birkenfeld Resource Page
- U.S. v. Israel Birman, C.D. Cal. case 2:18-cr-00404-PA (June 26, 2018) — Criminal Information (false tax return; failure to file FBAR) — Conviction (Ben Zion Birman), Minutes of sentencing (Ben Zion Birman) C.D. Cal. Case 18-cr-404 —Minutes of sentencing (Israel Birman) — DOJ Press release — Comment, Jack Townsend, "Another Offshore Account Plea to One Count of Tax Perjury" (11/15/18)
- U.S. v. Bloomberg, N.D. Ga. Case 14-cr-231 — Docket — DOJ Press Release, "Accountant Pleads Guilty To Hiding Swiss Bank Account" — (Imprisonment 14 Days, Supervised Release 2 Years, Fine $5,000.00, Restitution $9,567.00, Special Assessment $100.00)
- U.S. v. Bohanec, 263 F.Supp.3d 881 118 AFTR 2d 2016-6757 (C.D. Cal. 2016) — Comment, Jack Townsend, "District Court Imposes FBAR Willful Penalty, Holding Reckless Conduct is Willful and Applying Preponderance Standard (12/10/16)"
- U.S. v. Booker, S.D. Fla., 19-cr-60152 — Docket and collected documents, comments — DOJ Press Release, "Former CPA Indicted for Failing to Report Foreign Bank Accounts and Filing False Documents with the IRS" — Comment, Golding & Golding, "Former CPA Has Been Indicted for Multiple FBAR Violations" — Comment, Jack Townsend, Taxpayer Charged with False SFCP NonWillful Certification (8/26/19) ("This is the first time (at least that I can recall) that DOJ Tax has included a charge for false non-willful declaration in a SFCP submission.") — Order transferring case to fugitive status — CPA Journal, Mar. 2020: Streamlined Disclosure in U.S. v. Brian Nelson Booker: A Former CPA Sets a Dubious Precedent ("The former CPA is now a fugitive, living since 2016 in a country that has no extradition treaty with the United States.")
- U.S. v. Boyd, C.D. Cal. Case 18-cv-803 — Docket (C.D. Cal.) — Complaint — Statement of Uncontroverted Facts — Civil Minutes — Judgment — Comment, Jack Townsend, "Two Cases Sustaining FBAR NonWillful Penalties on Per Unreported Account Basis (4/26/19)" — Comment, Roger Russell, "Cross-border royal baby tax compliance", Accounting Today, May 21, 2019 (Archived copy) — Comment, Grant Thornton, "Court finds non-willful FBAR penalty not limited to $10,000 per year" — Subsequent History Docket (9th Cir.) — Reversed by, Remanded by United States v. Boyd, 991 F.3d 1077, 2021 U.S. App. LEXIS 8569, 2021 WL 1113531 (9th Cir. Cal., Mar. 24, 2021) ("31 U.S.C.S. § 5321(a)(5)(A) authorized the IRS to impose only one non-willful penalty when an untimely, but accurate, Report of Foreign Bank and Financial Accounts was filed, no matter the number of accounts."). Appeal terminated, Mar. 24, 2021. Later proceeding at United States v. Boyd, 18-cv-803, 2021 U.S. Dist. LEXIS 97163 (C.D. Cal., May 20, 2021). Order granting stipulation to dismiss case by reason of settlement, Dec. 20, 2021; earlier C.D. Cal. order on motion for summary judgment, 2019 WL 1976472), 2019 U.S. Dist. LEXIS 68863 (Apr. 23, 2019) — 991 F.3d 1077 (9th Cir. 2021) Reversed and remanded: "Boyd was required to file one FBAR for the 2010 calendar year by June 30, 2011. She failed to do so. Accordingly, she committed one violation, and the IRS concluded that her violation was non-willful. Thus, the maximum penalty for such a violation 'shall not exceed $10,000.'" Issue addressed (some argue "resolved" in Bittner case.
- U.S. v. $4,656,085.10 in bank funds (Brander), 2014 WL 522864 (C.D. Cal.)
- U.S. v. Brayshaw, 118 AFTR 2d 2016-6203 (E.D. Cal. 2016), 2016 WL 7048033 (Ocr. 19, 2016) (Records demand regarding Swiss bank account) — Court documents — Magistrate Judge findings and recommendation
- U.S. v. Brayshaw, E.D. Cal. Case 14–mc–00088, 2018 WL 534120 (Application for reconsideration denied), 2018 WL 534121 (Jan. 23, 2018) UBS client. Government motions for contempt. "counsel for the Swiss bank in question, UBS AG, took the position that to the extent additional records existed pertaining to another UBS entity, UBS Swiss Financial Advisers ('UBS SFA')". "Respondent is ordered to provide an executed Consent Directive".
U.S. v. Brayshaw, 9th Cir. Case 17-16327, 727 Fed.App'x. 407 (Mem) — Brief for appellant — Brief for Government
U.S. v. Brayshaw, E.D. Cal. Case No 22-cv-01859, Docket — Complaint — Order Jan. 3, 2023 — Order Apr. 3, 2023 — Gov't claim against Nora Brayshaw, as fiduciary and surviving spouse of the deceased David Brayshaw in the amount of $474,334.80. — Earlier litigation on other matters: Brayshaw v. Terraces of Sausalito Homeowner's Association, N.D. Cal. 2005, Case 04-4672; Brayshaw v. Gelber, 556 A.2d 788 (N.J. Super. 1989 (suspension from practice of medicine). Nora Brayshaw died in Red Bluff, Calif. on April 21, 2023.
- U.S. v. Briguet, 2020 WL 6945929, 2020 U.S. Dist. LEXIS 221467 (E.D. N.Y.) (UBS client; willfulness based on newspaper publicity of "Government's efforts to identify U.S. taxpayers with offshore bank accounts and UBS's agreement to provide the Government with account holder information")
- U.S. v. Brockman, S.D. Tex. 4:21-cr-9 — Documents from GovInfo — Transferred from N.D. Cal. Case 20-cr-371, 2021 U.S. Dist. LEXIS 499, 2021 WL 28374 — 604 F.Supp.3rd 612 (S.D. Tex. 2022) — Order finding competent to stand trial — DOJ Press Release, Oct. 15, 2020, "CEO of Multibillion-dollar Software Company Indicted for Decades-long Tax Evasion and Wire Fraud Schemes. Allegedly Used Secret Swiss and Bermudian Bank Accounts in Scheme to Conceal Approximately Two Billion Dollars of Capital Gains Income" — Michael Levenson, N.Y. Times, Oct. 15, 2020, updated Jan. 22, 2021, "U.S. Brings ‘Largest Ever Tax Charge’ Against Tech Executive" (Archived copy) — Robert W. Wood, "Tax Lessons From ‘Biggest-Ever’ $2 Billion Robert Brockman Tax Evasion Case", Forbes, Oct. 19, 2000 — NBC News, Aug. 7, 2022, "Robert Brockman, billionaire charged in $2 billion tax evasion case, dies at 81" — Jack Townsend, Federal Tax Crimes Blog, "Brockman, Defendant in Pending Major Tax Crimes Case, Dies" (8/6/22) — Forbes, Feb 5, 2021, "The Manipulative, Little Known Billionaire Who Nearly Ruined The Country’s Richest Black Person" — Senate Committee on Finance, Mirabaud Report: "The Shell Bank Loophole: Billionaire tax evasion scheme exposes how weak enforcement of the Foreign Account Tax Compliance Act enables wealthy tax cheats to hide income offshore" (2022) — Senate Committee on Finance, Press Release, Sept. 15, 2021, "Wyden Presses Swiss Bank Mirabaud on Billionaire Tax Evasion, Mirabaud held $1 billion in undeclared assets for Robert Brockman for over a decade" — Irina Ivanova, CBS News, Aug. 25, 2022, "Rich Americans hide 'billions' offshore thanks to tax loophole, Senate panel finds".
- Brockman v. U.S., S.D. Tex., Case 22-cv-00202, Docket — Jeopardy assessment; 2022 U.S. Dist. LEXIS 179662, 2022 WL 4747506
- U.S. v. Bussell, Nos. 02-50495, 02-50528 (9th Cir. 2005) — L.A. Times, Feb. 6, 2002, "Doctor in Fraud Trial Dies in Fall from Hotel"
Bussell v. Comm'r, T.C. Memo. 2005-77, aff'd, 262 Fed.App'x 770 (9th Cir. 2007)
Letantia Bussell and Estate of John Bussell v. Comm'r, 130 T.C. No. 13 (2008)
U.S. v. Bussell, 2015 WL 9957826, 117 AFTR 2d 2016-439 (C.D. Cal. 2015)
U.S. v. Bussell, 117 AFTR 2d 2016-446 (C.D. Cal. 2016)
U.S. v. Bussell, 120 AFTR 2d 2017-6376 (C.D. Cal. 2016)
U.S. v. Bussell, 120 AFTR 2d 2017-6379 (9th Cir. 2017) (Court version) — Comment by Jack Townsend, "Ninth Circuit Summarily Rejects Arguments Against FBAR Willful Penalty" (10/27/17) — Comment by Anthony Parent, "A win for the government? Unpacking the meaning of the Bussell FBAR decision"
Bussell v. U.S., S.Ct., Case 17-1052 — Petition for Certiorari — Brief for Gov't on Petition
- California Bankers Ass'n v. Shultz, 416 U.S. 21 (1974)
- U.S. v. Cam, 2022 U.S. Dist. LEXIS 202770 (S.D. Fla.) ("In 2016, a delegate of the Secretary of the Treasury timely assessed civil penalties totaling $843,264 against Richard for willfully failing to timely file Forms TD F 90-22.1—Reports of Foreign Bank and Financial Accounts ('FBAR')—for the years 2006, 2007, and 2008 ("FBAR Penalties"). … The United States holds a judgment lien against Richard's estate, and Defendant, in his capacity as a potential heir and/or personal representative of Richard's estate, and/or as a distributee of Richard's property for the unpaid FBAR Penalties, in the amount of $1,010,322.68 ('FBAR Lien').")
- U.S. v. Cambata, E.D. Va., Case 15-cr-362 — Docket — Criminal Information — Plea Agreement — Judgment — DOJ Press Release, "Former U.S. Citizen Pleads Guilty to Tax Fraud Related to Swiss Financial Account. Used Hong Kong Entity and Foreign Accounts in Switzerland, Monaco and Singapore to Conceal Funds" — Comment, Jack Townsend, "Another Taxpayer Guilty Plea for Offshore Account Misbehavior" (2/3/16) — Comment, Matthew Lee, "DOJ’s Latest Offshore Tax Case Shows Expatriates Who Renounce U.S. Citizenship Not Immune From Prosecution" (Feb. 4, 2016) — Comment, Virginia La Torre Jeker, "Expatriating: No Protection Against Criminal Tax Prosecution". World.tax, Feb. 15, 2016 — Comment, Virendrasingh Ghunawat, "Cambata Aviation to open a can of political worms, ED begins examination", India Today, Mar. 16, 2017 — Ed. Note: It is true that renunciation of U.S. citizenship does not extinguish liability for tax crimes, while a citizen or thereafter. However, absent charges of money laundering or common-law fraud, it may be difficult for the IRS, DOJ and State Department to exercise jurisdiction (see "extradition" in Enforcement and Partial Abatement Matters). It appears likely that in view of Cambata's aviation business and the terms of a negotiated plea agreement, subjecting himself to the jurisdiction of the E.D. Va. was a business decision. — Comment, Indian Express, Oct. 18, 2017, "Court cancels bail to Cambata Aviation promoter. The Dindoshi sessions court last week cancelled the anticipatory bail granted to Cambata in 2015" (Interpol Red Notice filed) — Comment, Aditya Anand, "Employees left in the lurch as Cambata shuts shop", Mumbai Mirror, Aug. 23, 2016 — Mentioned in Manafort Sentencing Memorandum (see p. 40)
Cambata v. U.S. (E.D. Pa. 16-mc-219 — Docket — Petition for an order quashing the Internal Revenue Service summons to their attorney
- U.S. v. Canale, 115 AFTR 2d 2015-2249 (S.D. N.Y. 2015) ("Canale conspired with others to open and maintain undeclared bank accounts in Switzerland — and to hide those accounts, and the income generated therefrom, from the Internal Revenue Service" Sentence: "Underlying Count is dismissed on the motion of the US. Pleaded guilty to Count(s) 1s, Probation for a term of Three Years, to be fulfilled as set forth on the additional probation terms page. Special Assessment of $100 which is due immediately. Restitution of $90,472.00. Fine of $50,000.00. The defendant shall also comply with the terms for the recovery of $394,460.00 relating to the civil penalty action") — Docket — Sealed indictment — DOJ Press Release, "Manhattan U.S. Attorney Announces Charges Against Kentucky Resident for Maintaining Secret Swiss Bank Accounts" (Nov. 18, 2014) — Comment, Kevin McKoy, USA Today, "From 2 Tax-Evasion Sentences, a Lesson Comes" — Comment, David Klassing, "Why the FBAR Statute of Limitations Won’t Save You" ("Each year that a taxpayer declares that they don’t have ownership interests in a foreign bank account; he or she is extending the statute of limitations on the underlying crime.") — Comment, Jack Townsend, "Court Holds That Liability for FBAR Civil Willful Penalty Survives Death" (9/26/18)
- U.S. v. Chabot, 2014 WL 4979735 (D. N.J.) ("On or around April 6, 2010, the IRS received information from the French competent authority pursuant to the United States–France income tax treaty that provided 'information concerning U.S. Persons maintaining undisclosed bank accounts at HSBC bank.'")
U.S. v. Chabot, 116 AFTR 2d 2015-5270, 793 F.3d 338 (3d Cir. 2015) ("IRS petition to enforce summonses for foreign bank account records") — Comment, Jack Townsend, "Third Circuit Applies Required Records Doctrine to Require Taxpayers to Respond to Compulsory Process About Foreign Bank Account" (7/18/15)
U.S. v. Chabot, No. 16-3873 (3rd Cir. 2017) (civil contempt for failing to comply with the Court's enforcement order of IRS summons)
- U.S. v. Chatfield, S.D. Cal., Case 10-cr-4546 — Docket — Criminal Information — Judgment — DOJ Press Release, "UBS Client Sentenced in San Diego for Hiding Assets in Secret Bahamian and Swiss Bank Accounts" — Comment, Jack Townsend, "Another Plea for Taxpayer with UBS & Credit Suisse Accounts"
- U.S. v. Chen-Baker, 2023 U.S. Dist. LEXIS 5254, 2023 WL 155741 (W.D. N.Y.) ("In December 2020, Ms. Chen-Baker paid the assessed Form 8938 penalties in the amount of $40,000 plus interest and the Form 3520 penalties in the amount of $28,579.50 plus interest. (Doc. 4 ¶ 68.) She did not, however, pay the assessed $40,000 penalty for her failure to file her required FBAR forms. The United States now seeks the $40,000 for the FBAR penalties, interest on that amount, and a late payment penalty under 31 U.S.C. § 3717(e)(2) and 31 C.F.R. § 5.5(a).")
- U.S. v. Chernick, S.D. Fla., Case 09-cr-60182 —Docket — Criminal Information — $4 million PSB Bond — Plea Agreement — Judgment — DOJ Press Release, "UBS Client Pleads Guilty to Filing False Tax Return, Hid $8 Million in Secret Swiss Bank Accounts" — Comments, Jack Townsend, "Get in Line Brother #14 - Another Plea in UBS" and "Guidelines Calculations Games -- More on the Chernick Plea" (8/3/09) — Comment, Phil Hodgen, "Evidence of IRS’s focus on identifying new banks" (Aug. 4, 2009) (includes Statement of Facts of Plea Bargain)
- U.S. v. Cheung — Docket — Indictment — DOJ Press Release, Jan. 28, 2003 — Steven N.S. Cheung, Inc. v. U.S., 2006 U.S. Dist. LEXIS 61033 (W.D. Wash.), 545 F.3d 695 (9th Cir. 2008) Steven and Linda Cheung are fugitives from IRS prosecution. See also cases brought on their behalf by their lawyer William P. Shannahan, below.
- U.S. v. Chitkara, D.N.J., Case 13-cr-202 — Docket — Criminal Information — Plea Agreement — Order Setting Conditions for Release — Judgment —DOJ Press Release, "Monmouth County, N.J., Man Admits To Filing False Personal Income Tax Returns Omitting Swiss Bank Accounts"
- U.S. v. Cittadini, W.D. Wash., 09-cr-344 — Criminal Information — Plea Agreement — Judgment — Amended Judgment — DOJ Press Releases, "Seattle Area UBS Client Pleads Guilty to Filing a False Tax Return" and "Justice Department Highlights Tax Enforcement Results" (Apr. 7, 2010) ("In January 2010, Roberto Cittadini, of Bellevue, Washington, was sentenced to six months of home confinement for failing to report income from secret UBS bank accounts under his control.")
- U.S. v. Estate of Brett L. Clemons, T.C. Memo. 2022-95 (UBS client. "Brett Clemons, Sr. opened his first numbered Swiss bank account in 2001, and he used that account to hide money from his then wife and the Internal Revenue Service. In 2003 through 2009, the years at issue, he funneled into numbered foreign accounts income that he did not report on his Forms 1040, U.S. Individual Income Tax Return. Neither did he report investment income earned in those accounts.")
- U.S. v. Aaron Cohen, C.D. Cal. Case 13-cr-498 — Docket — Plea Agreement — Judgment —Comment, Ronald Marini, "IRS Continues Cracks Down on Undeclared Israeli Bank Accounts!", Comment, Jack Townsend, "Another Israeli Bank Depositor Plea to Conspiracy" (8/30/13) DOJ Press release
- U.S. v. Fariba Ely Cohen, C.D. Cal. Case 17-cv-01652 — Docket — 2019 WL 8231039, 2019 WL 4605709 (C.D. Cal.), Earlier proceeding 2018 WL 6318837 (C.D. Cal.) ("Defendant, who failed to report foreign financial accounts for the 2008 tax year, was assessed civil penalties in the amount of $1,549,849 on March 5, 2015." OVDP case. The opinion discusses the calculation of the penalty as between divorcing spouses with an unreported joint account.) — Tax Times: "California Woman Agree To $930K Settlement In $2.3M FBAR Case", Apr. 8, 2022
- In re Saeed Cohen, 522 B.R. 232 (Bankr. C.D. Cal. 2014) (Community property issue: pre-separation tax debts, including FBAR penalty settled in OVDP. "In 2011, after Debtor and Ms. [Fariba] Cohen separated, he participated in a disclosure and settlement program, the Offshore Voluntary Disclosure Initiative ("OVDI"), and entered into a "closing" agreement (settlement) with the IRS for approximately $8.7 million.")
- U.S. v. Menashe Cohen, D. N.H. Case 14-cr-111 — Docket — Criminal Information — Sentencing Memo — Judgment — DOJ Press Release
- U.S. v. Mauricio Cohen Assor and Leon Cohen-Levy, S.D. Fla. Case 10-cr-6159 — Complaint — Comments, Jack Townsend, "More Offshore Account Charges -- Of HSBC (Reputedly) and Recorded Conversations" (4/21/10) and "First Sentencing in Offshore Case that Went to Trial" (2/5/11) (sentences 10 years plus $9,379,849 and $7,761,959, respectively, restitution, and $100,000 fines) — DOJ Press Release
- U.S. v. Michael Cohen, S.D. N.Y. Case 1:18-cr-00602, Docket — Felony Information — Plea Agreement — Sentencing memo — Comment, Jack Townsend, "USAO SDNY Sentencing Memo for Michael Cohen for Tax and Other Crimes" (12/9/18) — Ankush Khardori, "Michael Cohen Is Already Undermining the Trump Prosecution Immediately after the indictment, he says he didn’t really mean his guilty plea", New York Mag., Mar. 31, 2023 (Archived copy)
- U.S. v. Colliot, W.D. Tex. Case 16-cv-1281, 2018 U.S. Dist. LEXIS 83159, 2018 WL 2271381 (W.D. Tex.); 2021 U.S. Dist. LEXIS 126389, 2021 WL 2709676 (UBS case; structuring of financial transactions, FBAR civil penalties) — Docket — Complaint — Answer by UBS to Writ of Garnishment — Motion to compel disclosure by Government, and for declaration that Government has waived attorney-client privilege (spousal privilege denied in matter of documents relating to foreign bank activity) — Order, Dec. 12, 2017 — Order, Dec. 15, 2017 — Order May 15, 2018 (Court version; "Colliot's Unopposed Motion to Modify Order on Prejudgment Writ of Garnishment to UBS [#61] is GRANTED IN PART and DENIED IN PART") — Gov't Additional Memorandum, June 14, 2018 — Def't Brief for Dismissal — Order, June 19, 2018 granting def't attorney withdrawal — Order, Jan. 30, 2019 dismissal with prejudice
- Crawford v. Treasury Dept., 2015 WL 5697552 (S.D. Ohio 2015) ("Plaintiffs request that the Court enjoin Defendants from enforcing the Foreign Account Tax Compliance Act('FATCA'), the intergovernmental agreements ('IGAs') negotiated by the United States Department of the Treasury ('Treasury Department') to supplant FATCA in the signatory countries, and the Report of Foreign Bank and Financial Accounts ('FBAR') administered by the United States Financial Crimes Enforcement Network ('FinCEN')." Denied.). — Isaac Brock Society comment
- In re: Credit Suisse AG, N.Y.S. Dept. of Financial Services — Consent Order pursuant to Banking Law ¶ 44-a — Credit Suisse Press Release, "Credit Suisse Reaches Settlement with New York State Department of Financial Services Relating to Foreign Exchange Rates", Nov. 12, 2017 — N.Y.S. Dept. of Financial Services Press Release, "DFS Fines Credit Suisse AG $135 million for unlawful, unsafe and unsound conduct in its foreign exchange trading business", Nov. 13, 2017
- U.S. v. Credit Suisse AG, E.D. Va. Case 14-cr-188 — Docket — Waiver of Indictment — Statement of Facts — Document submitted by Tim L. Blixseth; Statement — Plea Agreement — Judgment — DOJ Press Release, "Credit Suisse Sentenced for Conspiracy to Help U.S. Taxpayers Hide Offshore Accounts from Internal Revenue Service" ("U.S. District Chief Judge Rebecca Beach Smith entered judgment and conviction and a restitution order requiring Credit Suisse to pay approximately $1.8 billion dollars to the United States by Nov. 28, per the plea agreement.") — Comment, Jack Townsend, "Credit Suisse Pleads to One Count of Conspiracy to Aiding and Assisting" (5/19/14; 5/20/14)
- U.S. v. Curran, S.D. Fla. S.D. Fla. Case 12-cr-80206 — Def't Sentencing Memorandum — DOJ Press Release, "New Jersey Businessman Charged With Conspiring To Conceal Offshore Bank Accounts From The IRS" (Jan. 26, 2011) — IRS, Offshore Tax-Avoidance and IRS Compliance Efforts, ("April 25, 2013: Mary Estelle Curran, of Palm Beach, Fla., was sentenced for filing false tax returns. Curran pleaded guilty in January 2013 and agreed to pay a civil penalty of $21 million.") — Comment, Virginia La Torre Jeker, "IRS Wins Largest FBAR Penalty Jackpot — $21,666,929 — 79 Year Old Widow Faces Jail Time" — Comment, Robert W. Wood, Forbes, "Florida Widow Guilty + $21M Penalty For Inherited Swiss + Liechtenstein Accounts", Comment, Jack Townsend, "Sentencing Judge on Offshore Prosecution Chastises the Government for Lack of Judgment" (4/25/13) ("According to a newspaper report, the sentencing judge in the prosecution of Mary Estelle Curran of Palm Beach chastised the Government for prosecuting the case rather than resolving it civilly.")
- U.S. v. Dadurian, 2019 WL 2577921 (S.D. Fla.) ("Thus, the Plaintiff contends that the Defendant owes $2,713,692.33 in penalties and interest and seeks judgment in that amount. … Ayaba had bank accounts in the British Virgin Islands and Switzerland and Shoremont had bank accounts in Liechtenstein and the British Virgin Islands.") Willfulness to be determined at trial.
- U.S. v. Dahake, D. N.J. Case 11-42 — Docket — Indictment — Plea Agreement — Judgment — DOJ Press Release, "New Jersey Businessman Pleads Guilty To Conspiring To Conceal Offshore Bank Accounts From The IRS" (Apr. 11, 2011) — Comment, H. David Rosenbloom, Scott D. Michel and Yemi Ojutiku, "Indictment Of Offshore Account Holder Portends A New Round of Aggressive Enforcement", Mar. 1, 2011 — Comments, Jack Townsend, "Another Indictment with Allegations Reputedly of Activity by HSBC and Its Bankers" and "HSBC India Developments" (4/14/11)
- U.S. v. Daley, 2022 U.S. Dist. LEXIS 181864, 2022 WL 18215854 ("the plaintiff United States of America requests . . . [j]udgment against defendant, Mary Daley, in the amount of $85,714.48, plus statutory additions and interest")
- U.S. v. DeForrest, 463 F.Supp.3d 1150 (2020) (UBS client; foreign accounts inherited from deceased husband)
- U.S. v. DeMauro, 483 F.Supp.3d 68 (D. N.H. 2020) UBS client. ("Annette DeMauro is an 82-year old woman residing in Rye Beach, New Hampshire." "DeMauro 'willfully' failed to file an FBAR in violation of 31 U.S.C. §§ 5314, 5321, but Government failed to prove by clear and convincing evidence that she failed to timely file tax returns with a specific fraudulent intent to evade tax.")
U.S. v. DeMauro, 540 F.Supp.3rd 157 (D.N.H. 2021) (Court copy of order ("consideration of taxpayer’s income reporting obligations as evidence of her willful failure to file timely FBARs was not clearly erroneous") Thus "willfulness" is being applied broadly, approaching a per se or strict liability level of application. Note such treatment in cases citing failure to check the box on Form 1040, Schedule B affirming control of a foreign account, and failure to submit IRS Form 8938, Statement of Specified Foreign Financial Assets. See Anthony N. Verni, “Willful FBAR Penalty moving towards a strict liability standard”, Sept. 3, 2019
- U.S. v. Ashvin Desai, N.D. Cal. Case 11-cr-846 — Docket — Indictment — Comment, Jack Townsend, "HSBC India Client Sentenced Ever So Lightly Given Facts and Trial Conviction Rather than Plea" (7/12/14) — Comment, Robert W. Wood, "Can Foreign Account Nondisclosure Be A Conspiracy?", Forbes, Dec. 27, 2011 — DOJ Press Release ("Medical Device Inventor Sentenced to Prison for Tax Fraud. California Man Hid Millions in Bank Accounts in India and Dubai")
U.S. v. Desai, N.D. Cal. Case 16-cv-3436 — Docket — Complaint — Notice of Voluntary Dismissal
- Dewees v. U.S., Civil Action No. 2016-1579 (D.C. 2017) — Docket — Documents downloaded from RECAP: Complaint — Gov't Memo in Support of Motion to Dismiss — Declaration of IRS agent — Opposition to Gov't Motion — Gov't Reply Memo — Memorandum Opinion ("Dewees learned that he had failed to comply with these [26 U.S.C. § 6679, Form 5471] requirements, and, on the advice of a tax specialist, applied to participate in the IRS’s Offshore Voluntary Disclosure Program ('OVDP').") Tax penalties collected from Dewees by Canadian Revenue Agency under tax treaty reciprocal collection provision as Dewees had never sought to acquire Canadian nationality.
- In re: Grand Jury Investigation, U.S. v. John Doe, 908 F. Supp. 2d 348; 2012 (E.D. N.Y. 2012) ("The Court rejects, due to lack of evidentiary support, respondent's contention that the government already possesses all [FBAR-related] documents sought by the Subpoena.")
- In re: Grand Jury Subpoena Dated February 2, 2012, U.S. v. Doe, 741 F.3d 339 (2d Cir. 2013) ("subpoena seeks records of Doe's foreign banks accounts, which the Bank Secrecy Act requires United States resident account holders in foreign banks to maintain.")
- U.S. v. John Does, W.D. N.C. Case 19-mc-67 — Docket — Application Petition for Leave to Serve IRS Summons and supporting memorandum (Apr. 23, 2019) ("John Doe, Finnish taxpayer(s) who, at any time during the period January 1, 2013 through December 31, 2014, held a payment card…") — Order — DOJ Press Release, "Court Authorizes Service of John Doe Summonses Seeking Information About Finnish Residents Using Bank of America, Charles Schwab, and TD Bank Payment Cards Linked to Non-Finnish Bank Accounts" — Comment, Jack Townsend, "DOJ Tax Obtains a John Doe Summons for U.S. Bank Information at Treaty Request by Finnish Tax Administration" (5/1/19)
- U.S. v. Dōrig, E.D. Va. Case 1:11-cr-95 — Docket — Indictment (Superseding indictment as to Marco Parenti Adami, Emanuel Agustoni, Michele Bergantino, Roger Schaerer, Markus Walder, Susanne D. Ruegg Meier, Andreas Bachmann, Josef Dörig) — Judgment — (Dörig is founder of a Swiss trust company that worked with Credit Suisse) — Comment Jack Townsend, "Another Credit Swiss Related Bank Enabler Pleads Guilty" (4/30/14)
- U.S. v. Doyle, S.D. N.Y. case 16-00506 — U.S. Attorney's Office Press Release, July 28, 2016 — Docket ("Satisfaction is acknowledged between United States of America, plaintiff, and Lacy Doyle, defendant, for the restitution in the amount of $238,444.36, the fine in the amount of $2,000.00, and the special assessment in the amount of $100.00, amounting in all to the sum of $240,544.36.") — Sealed Indictment — Superseding Indictment — Opinion and order, Apr. 19, 2018 — Comments, Jack Townsend, "Another Offshore Account Indictment" (7/30/16) and "Pretrial Order Excluding Government Evidence in Criminal Tax Case for Offshore Accounts" (4/22/18) (Pretrial order excluding Government evidence in criminal tax case for offshore accounts) — Sentencing memorandum (from PACER via RECAP) — Judgment, Nov. 9, 2018 — Bloomberg comment, "Manhattan Art Consultant Avoids Prison for Hiding Cash Abroad" — Comment, John Riley, "Heiress avoids prison sentence after pleading guilty to filing a false tax return". Lacy Doyle, a granddaughter of a key executive in the Longines watch company, had pleaded guilty in May to filing a single false tax return in 2009," Newsday, Nov. 5, 2018.
- U.S. v. Duban, D. Haw, Case 10-cr-631 (See also Pflueger (below), associated prosecution) — Docket — Plea Agreement — DOJ Press Release, "Los Angeles accountant pleads guilty to tax crimes related to Hawaii clients" — Comment, Jack Townsend, "Another Plea Related to Offshore Activity" (10/12/12)
In re: Dennis Duban, CPA, SEC Proceeding
- U.S. v. Eisenberg, W.D. Wash. Case 10-cr-369 [also see 85-bk-583 — Docket — Criminal Information — Plea Agreement — Judgment — DOJ Press Release, "Former UBS Client Sentenced for Hiding Millions in Offshore Bank Accounts; Paid $2.1 Million Penalty to IRS" — Comment, Jack Townsend, "UBS Depositors Fail on Pleadings in Civil Case Against UBS" (2/2/13) — Comment, Bill Singer, "UBS Client Pleads Guilty in Tax Case", Forbes, Mar. 7, 2011 — Earlier unrelated case of Arthur Joel Eisenberg, 719 P.2d 187 (Wash. 1986)
- Fairbank v. Comm'r, T.C. Memo 2023-19 (Includes community property issues. "This case arises from a notice of deficiency dated April 12, 2018, in which the Internal Revenue Service (IRS or respondent) determined income tax deficiencies for taxable years 2003, 2004, 2005, 2006, 2007, 2008, 2009, and 2011 (years at issue) of $20,088, $5,078, $6,136, $23,011, $10,785, $15,910, $28,130, and $95,994, respectively, and accuracy-related penalties under section 6662 … During the years at issue, petitioners timely filed their joint Forms 1040, which were prepared by Mr. Holly. In preparing petitioners' tax returns, Mr. Holly sent them a tax organizer each year, on which petitioners generally checked ‘No’ to the question about foreign bank accounts. Additionally, on petitioners' Forms 1040 filed for the tax years at issue, petitioners checked 'No' to the questions of whether they 'have an interest in or a signature or other authority over a financial account in a foreign country, such as a bank account, securities account, or other financial account' or whether they /receive[d] a distribution from, or were … the grantor of, or transferor to, a foreign trust.'")
- U.S. v. Falterbauer, S.D. N.Y. Case 15-cr-397 — Sealed Indictment — Def't Sentencing Memorandum — Gov't Sentencing Memorandum — Judgment — DOJ Press Release, "Florida Man Pleads Guilty In Manhattan Federal Court To Concealing A Bank Account In Liechtenstein Worth More Than $1 Million"
- Farhy v. Comm'r. 160 T.C. No. 6, 2023 U.S. Tax Ct. LEXIS 1684 Penalty for failure to file Form 5471, Controlled Foreign Corporation. Held: IRS lacks statutory authority to assess penalties under I.R.C. § 6038(b)(1) or (2) against taxpayer — Tax Expatriation, Apr. 17, 2023, "Three Precedent Setting Cases in International Information Reporting ('IIR') in 6 Weeks: Aroeste, Bittner, and Farhy: all Interconnected via Title 26, Title 31 and U.S. Income Tax Treaties" — Forbes, May 9, 2023, "Taxpayer Scores: Farhy Blocks International Reporting Penalties"
- U.S. v. Fellmann, Huppi and Reist (client advisors at Swiss bank), S.D. N.Y., Case 12-cr-962 — Docket (PACER) — Docket (RECAP)— Indictment — Superseding information (Fellmann) — Judgment (Fellmann) —Judgment (Reist) — Zürcher Kantonalbank Deferred Prosecution Agreement — Comment, Jack Townsend, "Two Swiss Bankers Come to U.S. to Face Charges Filed in 2012" (11/30/16)
- U.S. v. Fisher, 2022 WL 3588417 (C.D. Cal.) ("Pamela Fisher, is liable to the United States for the non-willful FBAR penalty for the years 2011 and 2012 in the amount of $10,000.00 for each year, plus the late payment penalty and interest")
- Flint v. U.S. (Estate of Margaret J. Jones), 162 Fed.Cl. 91 (2022) ("Executors of estate of deceased taxpayer filed suit against United States, claiming breach of contract and illegal exaction, and seeking $156,795.26 paid to IRS by taxpayer as miscellaneous offshore penalty (MOP) submitted with her domestic streamlined domestic offshore (SDO) submission to resolve outstanding tax liability with respect to foreign bank accounts")
- Flume v. Comm’r, T.C. Memo. 2017-21 (U.S. citizen resident in Mexico; Form 5471 penalties) — Comment, Hale E. Sheppard, "Flume and Form 5471 Penalties for Unreported Foreign Corporations: A Glimpse at Unique Aspects of an International Tax Dispute", Taxes the Tax Magazine, Aug. 2017
U.S. v. Flume, 2018 WL 4378161 (S.D. Tex. 2018) (FBAR penalty assessed; see also 5471 case, above)
U.S. v. Flume, 390 F.Supp.3d 847 (S.D. Tex. 2019) (“taxpayer's actions satisfied willfulness requirement”)
- U.S. v. Fogel, C.D. Cal, Case 14-cr-691 — Docket — Criminal Information — Gov't Concurrence in Sentence Recommendation — Judgment — Comment, Jack Townsend, "Bank Leumi (Luxembourg) Client Pleads" (2/3/15) — Comment, Matt Coker, "Latest Tax Evasion Fallout For Dr. Baruch Fogel: Surrendering His Medical License", OC Weekly, Mar. 29, 2017 — DOJ Press Release, "California Doctor Pleads Guilty to Failing to Report Foreign Account at Bank Leumi in Luxembourg"
- U.S. v. Forbes, 120 AFTR 2d 2017-6018 (E.D. Va. 2017) (FBAR penalties and interest of $1,657,812.23 default judgment)
- U.S. v. Forbes, 120 AFTR 2d 2017-6020 (E.D. Va. 2017) (entry of judgment)
- Galpern v. De Vos & Co. PLLC, 2011 U.S. Dist. LEXIS 117095, 2011 WL 4597491 (E.D. N.Y. 2011) (Fee dispute with law firm over consultations in regard to FBARs and OVDP in relation to undeclared UBS account)
- U.S. v. Gabella, 2014 U.S. Dist. LEXIS 176367, 2014 WL 7338797 (ED NY 2014) (73-y.o. urban planner for the United Nations, Italian citizen0 — Criminal Information — Order of Statement of Reasons — Judgment — DOJ Press Release — Comment, Jack Townsend, "Another UBS Depositor Sentence; Consideration of the Role of Potential Deportation" (1/8/15)
- U.S. v. Gadola, S.D. Fla., Case 10-cr-20878 — Docket — Criminal Information — Gov't Supplemental Sentencing Memorandum — Report and Recommendations on Change of Plea — Plea Agreement — Comment, Jack Townsend, "OK, Mr. Prosecutor, Why Are You Punting on the Relevant Conduct? " (11/11/11) — Comment, Ruben Sprich, "Former UBS banker fined in Switzerland for handing data to U.S.", Reuters, Oct. 13, 2014 — Comment, Lynnley Browning, "Ex-UBS Banker Is Said to Have Been Informant in Inquiry", N.Y. Times, Mar. 1, 2011 (Archived copy) — Comment, Robert W. Wood, "No Jail In UBS Tax Evasion Case", Forbes, Dec. 3, 2011 — DOJ Press Release, "Former UBS Banker Pleads Guilty to Helping American Client Conceal Assets Offshore. SEC Registered Banker Caught on Tape Persuading Client to Not Disclose Offshore Account" — Comment, Health Care Renewal blog, "The Mystery of the Fugitive Founder (and Longterm President of an Offshore Medical School for US Students)", Oct. 16, 2013
- U.S. v. Galloway, 802 Fed. Appx. 247 (9th Cir. 2020) Case 18-cr-10313 — Docket — Jack Townsend, "Ninth Circuit Botches Evasion of Assessment Statute of Limitations" (2/12/20) — Affirming E.D. Cal. Case 14-cr-114 — Docket — Judgment
- U.S. v. Gandy, 2016 Bankr. LEXIS 3907 (Bankr. W.D. Tex. 2016) (FBAR violations, tax debts nondischargeable in bankruptcy) — Docket — Chapt. 7 Petition— IRS Response to Trustee's Motion to sell Property — Order Denying Discharge to James Gandy — Trustee's Final Report —Adv. Pro. Docket — Adv. Pro. Complaint — Adv. Pro. Declaration of IRS — Order Granting Summary Judgment for IRS
- U.S. v. Gardner, C.D. Cal., Case 18-cv-3536, 2019 WL 1767120 — Docket — Complaint — Default judgment — Minute order in chambers — Comment, Jack Townsend, "Two Cases Sustaining FBAR NonWillful Penalties on Per Unreported Account Basis" (4/26/19)
- U.S. v. Garrity, 304 F.Supp.3d 267, 2018 WL 1611387, 121 A.F.T.R.2d 2018-1342 (D. Conn. 2018) Memorandum and order, April 3, 2018
U.S. v. Garrity, 2018 U.S. Dist. LEXIS 91665 (D. Conn. June 1, 2018)
U.S. v. Garrity, 2018, U.S. Dist. LEXIS 92561 (D. Conn. June 4, 2018)
U.S. v. Garrity, 2019, U.S. Dist. LEXIS 32404 (D. Conn. Feb, 28, 2019) (FBAR penalty assessed against estate and heirs) — Expert report — Comment, Jack Townsend, "Court Rejects Defense Expert Testimony as to State of Law and Duty in Government FBAR Willful Penalty Case" (6/3/2018)
- Gaynor v. U.S., 150 Fed.Cl. 519 (2020) ("The Court Lacks Subject-Matter Jurisdiction Over Mr. Gaynor’s Claim Seeking A Refund For The 2018 Payments")
- U.S. v. Gentges, 531 F.Supp.3d 731 (S.D. N.Y. 2021), Case 18-cv-07910 (Apr. 4, 2019), UBS client — Docket — Complaint — Comment, Jack Townsend, "FBAR Collection Suit Where Taxpayer Put in Writing to UBS That He Wanted to Avoid Disclosure to IRS and Opted Out of OVDP" (9/5/18) ("This case falls more closely in the Jones-Schwarzbaum line of cases than it does in the Rum-Williams line of cases. Here, as in Jones and Schwarzbaum, the IRS failed to use the June 30 account balance when calculating the FBAR penalty for the preceding year, thereby departing from its own internal guidelines.") Remanded to IRS for recalculation of penalty.
- U.S. v. Estate of Gill, 546 F.Supp.3d 538 (S.D. Tex. 2021)
- U.S. v. Anton Ginzburg, E.D. N.Y. Docket — Information — Judgment (fine: $25,000) — DOJ Press Release, "Anton Ginzburg Pleads Guilty to Hiding Swiss Bank Account from the IRS" ("Ginzburg agreed to pay a civil penalty of over $1.5 million.") — Comments, Jack Townsend, "UBS Depositors Fail on Pleadings in Civil Case Against UBS" (2/2/13) and "Another UBS client Pleads Guilty" (7/15/11)
- Giordano v. UBS AG, 134 F. Supp. 3d 697; 2015 U.S. Dist. LEXIS 129828 (W.D. N.Y. 2015) ("[M]otion of UBS is granted, and the complaint is dismissed. In view of the enforcement of the forum selection clause leave to re plead is not granted.")
- U.S. v. Gippetti, 96 AFTR 2d 2005-6978 (D.C. N.J. 2005) (Offshore credit card project; bank and credit card accounts with Cayman National Bank, Ltd)
- U.S. v. Giraldi, 2021 WL 1016215, 2021 U.S. Dist. LEXIS 49481 (D. N.J.) (Non-willful violation; "This Court must ascertain whether Congress intended to penalize non-willful violations of Section 5314 on a per FBAR form or per account basis")
- U.S. v. Gisler, S.D. N.Y. 11-cr-662 (Aug. 5, 2022) — Indictment — Opinion — IRS, Offshore Tax-Avoidance and IRS Compliance Efforts, ("Aug. 4, 2011: Gian Gisler, a former UBS AG banker, was charged with conspiring to hide more than $215 million offshore at various Swiss banks. Gisler had more than 38 U.S. taxpayer clients and allegedly opened and/or managed more than 60 hidden accounts on their behalf.") — Comment, Basil Katz, "UPDATE 2-US charges ex-UBS banker over $215 mln tax fraud", Reuters, Aug. 4, 2011
Doral Fabrics Incorporated v. Gold, Steudler, Rinderknecht, Badertscher Rechtsanwälte AG, Gisler, UBS AG, Agquila Associates AB, Sup. Ct. N.Y. Co., Case 161939/2005 — Order of dismissal with prejudice as against UBS AG (case concerns alleged embezzlement and diversion of funds to secret Swiss bank account) Comment, Jack Townsend, “Superseding Indictment for Wegelin Individual Enablers to Add Tax Obstruction Count to Tax Conspiracy Count" (2/21/15)
- In the Matter of the Estate of Grace K. Gold, Deceased, 2016 N.Y. Misc. LEXIS 3932; 2016 NY Slip Op 32037(U) (Surrogate's Court, Nassau 2016) (Discussion of decedent's FBAR penalty agreement with IRS in connection with a will contest)
- U.S. v. Goldsmith, 541 F.Supp.3d 1058 (S.D. Cal. 2021) UBS client. ("The Court finds that Mr. Goldsmith’s repeated and admitted lack of care reaches the standard of reckless disregard for the law required to constitute a willful violation of Section 5314."); Appeal dismissed by U.S. v. Goldsmith, 2022 U.S. App. LEXIS 14857, 2022 WL 1654759 (9th Cir. Cal., Apr. 22, 2022) ("Pursuant to the stipulation of the parties (Docket Entry No. 32), these appeals are voluntarily dismissed.")
- U.S. v. José Manuel Gonzalez Testino, S.D. Fla., Case 18-mj-3171 — Docket — DOJ Docket — Arrest Warrant — Indictment — Stanford FCPA Enforcement Action Dataset — DOJ Press Release, "Business Executive Pleads Guilty to Foreign Bribery Charges in Connection with Venezuela Bribery Scheme" — Comment, Marc S. Raspanti, "A Billion Dollar Venezuelan Bribery And Money Laundering Scheme Unfolds" NBC Miami, Mar. 3, 2023, "Father, 3-Year-Old Son Dead in Murder-Suicide In Luxury Coconut Grove Apartment: Police"
- In Re Grand Jury Proceedings, No. 4-10, 707 F.3d 1262 (11th Cir. 2013) Case 12-13131, 11th Cir. (Feb. 11, 2013) ("we affirm the district court’s order granting the government’s motion to compel the Target and his wife to comply with the subpoenas duces tecum for their foreign financial account records.")
- In Re Grand Jury Subpoena, 5th Cir. Case 11-20750, Sept. 21, 2012 — Comment, Jack Townsend, "Fifth Circuit Falls in Line and Holds Required Records Trumps Fifth Amendment in Offshore Bank Case" (9/22/12) ("Required Records Doctrine required the witness to produce the subpoenaed foreign account records required by the Bank Secrecy Act and implementing regulations for FBARs")
- U.S. v. Greeley, N.D. Cal. DOJ Press Release, "UBS Client Pleads Guilty to Filing False Tax Return; Agrees to Pay $6.8 Million to the U.S. Treasury Department"
- U.S. v. Green (Estate of), 457 F.Supp.3d 1262 (S.D. Fla. 2020) (Withdrawal from OVDP; willfulness; liability of estate and revocable trust)
- U.S. v. Greenfield, 118 AFTR 2d 2016-5275, 831 F.3d 106 (2d Cir. 2015) (Liechtenstein Global Trust leaked documents) — See "Tax Haven Banks and U.S. Tax Compliance", Senate Hearing 110-614 (2008)
- Gubser v. IRS, 5th Cir. Case 16-40948, March 13, 2017 (Gubser failed to establish standing; case still in IRS appeals process and Government has not waived its sovereign immunity) — Appellant's brief — Amicus brief — Appellee brief (Standard of proof for willfulness in FBAR penalty imposition) Comment by Anthony Parent
- U.S. v. Gupta, D. N.J. Case 13-cr-145 — Docket — Criminal Information — Plea Agreement — Order Accepting Guilty Plea — DOJ Press Release, "New Jersey Adult Paraphernalia Wholesaler Sentenced To Prison For Tax Evasion, Hiding Nearly $1.2m From New York Business, Including In Undeclared Indian Bank Accounts" — Comment, Jack Townsend, "HSBC India Depositor Sentenced" (7/10/13)
- U.S. v. Gurary, N.D. Ohio Case 10-cr-4079 — Docket — Gov't Motion to Extend Time to File Indictment (last entry in file) — DOJ Press Release, "Financial adviser sentenced in Manhattan Federal court to 12 months’ imprisonment for hiding $8.8 million in Swiss bank accounts" — Comment, PRN Newswire from DOJ Press Release, "Seven UBS Clients Charged with Hiding Over $100 Million in Secret Swiss Bank Accounts to Defraud the IRS"
- U.S. v. HSBC Bank USA N.A., E.D. N.Y. Case 12-cr-763 — 2013 WL 3306161 — Gov't request to file Monitor's Report under seal
- U.S. v. Hadley, 2022 WL 899701 (M.D. Fla.) ("The IRS assessed civil penalties against Ms. Hadley in the amount of $230,000 — $10,000 per each undisclosed foreign account.” The per-report/per-account "question has not yet been decided by the Eleventh Circuit”.) Appeal filed to 11th Cir., July 8, 2022 and the Bittner ruling may govern.
- U.S. v. Handelsman, N.D. Cal. Case 13-cr-384 — Docket — Criminal Information — Sentencing Memorandum — Judgment — DOJ Press Release, "California businessman pleads guilty to concealing foreign bank account at Israeli bank on his tax return", Jul. 17, 2013 — Comment, Jack Townsend, "Another Guilty Plea Related to an Israeli Bank" (7/17/13) — Comment, Niv Elis, "Finance: The US Taxman Cometh to Israel, With a Vengeance: Israeli banks may be turning information on their American account holders over to the IRS, setting off financial nightmares for people who haven't filed properly", Jerusalem Post, Aug. 22, 2013
- U.S. v. Harder, 2016 U.S. Dist. LEXIS 181556 (E.D. Pa. 2016) (FCPA and FBAR violations) — Comment, Jack Townsend, "Another Guilty Plea Related to an Israeli Bank" (7/17/13)
- Harrington v. Comm'r, T.C. Memo 2021-95 UBS client. Statute of limitations inapplicable because of fraud. ("When submitting his original returns for 2005-2010, petitioner had filed FBARs disclosing bank accounts in New Zealand, where he and his wife resided part of the year. But he did not disclose on these previously filed FBARs any financial accounts in the Cayman Islands, Switzerland, or Liechtenstein. The RA found it suspicious that petitioner had disclosed the New Zealand accounts, which held relatively low balances, but had failed to disclose the other accounts, which held more than $3 million.") — Joel N. Crouch comment, Aug. 4, 2021, "IRS Statute of Limitations and Civil Fraud"
- U.S. v. Hawker, 2021 WL 288566, 2021 U.S. Dist. LEXIS 17783 (D. Utah) (Undeclared Cayman Islands account. "Defendant is subject to a penalty of $100,000")
- U.S. v. Heller, S.D. N.Y. Case 10-cr-388 — Docket — Indictment — Sentencing Memorandum — Judgment — DOJ Press Release, "Former UBS client pleads guilty in Manhattan federal court to hiding over $26.4 million in Swiss bank accounts" — Comment, Brian Baxter, "'New York's Most Obnoxious Lawyer' Among Seven Ex-UBS Clients Charged with Tax Crimes", AM Law Daily, Apr. 16, 2010 ("This case isn't Heller's first brush with infamy. He was disbarred in 2004 for screaming at and threatening judges, reports the New York Daily News.")
In re Kenneth Heller, Sup. Ct. App. Div., 1st Dept. ("Respondent disbarred from the practice of law in the State of New York, effective July 26, 2004, as indicated.")
- U.S. v. Hernandez, S.D. N.Y. Case 10-cr-334 — Docket —Criminal Information — Agreement to forfeit property — Sentencing Memorandum — Judgment — DoJ Press Release, Apr. 15, 2020
- U.S. v. Hidy, 471 F.Supp.3d 927 (D. Neb. 2020) ("non-willful failure to comply with the BSA subjects them to civil penalties and interest")
- U.S. v. Hoess, D. N.H. Case 11-cr-154 — Docket — Sealed Complaint — Plea Agreement — Judgment — IRS, Offshore Tax-Avoidance and IRS Compliance Efforts, ("Mar. 29, 2012: Lothar Hoess was sentenced to three years of probation and ordered to pay over $2 million in restitution for willfully failing to file a Report of Foreign Bank and Financial Accounts (FBAR).") — Comment, Andrew Wolfe, "IRS: Man hid cash in Swiss account", Nashua Telegraph, Jan. 14, 2010 — Comment, Jack Townsend, "Another UBS Client is Sentenced" (4/2/12)
- U.S. v. Hom, 113 AFTR 2d 2014-1426 (N.D. Cal. 2014) (FBAR collection action; amended answer and counterclaim struck)
U.S. v. Hom, 113 AFTR 2d 2014-2325, 45 F. Supp. 3d 175 (N.D. Cal. 2014) — Comment, Charles Rettig, "FBAR Penalty Applies to Offshore Poker Account"
U.S. v. Hom, 118 AFTR 2d 2016-5222, 657 Fed.Appx 652 (9th Cir. 2016) ("The issue before us is whether Hom's accounts with FirePay, PokerStars, and PartyPoker required the filing of FBAR forms under 31 U.S.C § 5314") — Comment, Taxes In The Back Blog, "Federal Judge: Offshore Online Gambling Accounts Are Reportable Foreign Financial Accounts" June 6, 2014
Hom v. U.S., N.D. Cal. Case 17-02525 (Sept. 22, 2017) (pro se "action for unauthorized disclosure of tax information" — Comment, Virginia La Torre Jeker, "Yesterday’s Taxpayer FBAR Victory", World.Tax, Nov. 22, 2016
- U.S. v. Homann, D. N.J. Case 09-cr-724, 2013 U.S. Dist. LEXIS 87271 (D N.J.) — Criminal Information — Judgment — Order denying early termination of probation — Comments, Jack Townsend, "Another UBS Related Plea Agreement (9/28/09)"; "Offshore Bank Convicted Defendant Denied Early Termination of Probation" (6/22/13) — DOJ Press Release, "UBS Client Pleads Guilty to Failing to Report $6.1 Million in Swiss Bank Accounts"
- U.S. v. Horowitz, 361 F.Supp.3d 511 (D. Md. 2019), 2019 U.S. Dist. LEXIS 9484, 2018 WL 265107 (Addresses statute of limitations for assessing FBAR penalties and the definitions of various FBAR terms, including the term "financial interest".) — Comment, Jack Townsend, "Court Applies Willful Blindness and Rejects Reliance on Friends Defense to FBAR Willful Penalty but Relieves Wife for One Year" (1/23/19) (The Kimble Court persuasively rejected the Colliot Court’s conclusion that “the IRS is still bound by the maximum penalty in the pre-2004 statute.”) — Comment, MKS&H, "Court defines 'financial interest' and makes other FBAR rulings" (Apr. 4, 2019) — Affirmed, 978 F.3d 80 (4th Cir. 2020)
- U.S. v. Horsky, E.D. Va. Case 16 Cr 224 (2016) — Docket — Criminal information — Plea agreement — Judgment — DOJ Press release — Comment, Robert W. Wood, "Leaving U.S. Over Election? Hiding Assets On Exit Is Criminal, Draws $100 Million Fine", Forbes, Nov. 5, 2016 — Comment Jack Townsend, "Former Business Professor Pleads Guilty to Tax Related Crimes; In Addition, Will Pay $100 Million FBAR Penalty" (11/4/16; 11/9/16) — Comment, Jack Townsend "Horsky is Sentenced for Major Offshore Accounts (2/11/17; 2/12/17)" — Comment, John Robertson, "False Form 8854 used as part of 'willful' #FBAR prosecution" — (Cf. Gil Horsky: Query — Renunciation) Mentioned in Manafort Sentencing Memorandum (see p. 40)
- U.S. v. Frederick and Hough, M.D. Fla. Case 13-072 — Docket — Indictment — "Florida Husband and Wife Indicted for Federal Tax Crimes. Doctors Maintained Offshore Bank Accounts at UBS and Other Foreign Banks That Concealed Income and Assets from the IRS" — Procedural order, June 7, 2013 — Order: Hough Acquittal as to Count 7 — Hough: Notice on Sentence Determination — Hough: 2nd Notice on Sentence Determination —Hough: Sentence, May 12, 2014 — Hough: Opinion and Order, July 9, 2014 — Hough: Final Order in Garnishment (Dec. 16, 2016)
U.S. v. Hough, 803 F.3d 1181 (11th Cir. 2015) — Court version of opinion, Sept. 9, 2015 — DOJ Press Release, May 9, 2014 "Florida Doctor Sentenced for Federal Tax Crimes. Doctor Maintained Multiple Offshore Bank Accounts at UBS and Other Foreign Banks That Concealed More Than $60 Million in Income and Assets" ("Dr. Patricia Lynn Hough, of Englewood, Florida, was sentenced today to serve two years in prison and three years supervised release") — Comment, Jack Townsend, "Offshore Account Conviction Affirmed" (9/10/15; 9/12/15) — Comment, Shelby Webb, "Englewood doctor gets 2 years for tax evasion. Patricia Hough must also repay more than $15 million to IRS." Sarasota Herald-Tribune, May 9, 2014 ("A grand jury indicted the couple in May 2013. David Leon Frederick vanished after the indictment and was declared a fugitive in July, leaving Patricia Hough to face trial alone. She was convicted in October 2013 and resigned from her job as a psychiatrist with the Sarasota County Health Department.")
- U.S. v. Hughes, 2023 WL 2393780, 2023 U.S. Dist. LEXIS 36975 (Appeal filed, 9th Cir., May 10, 2023) (Government suit to enforce FBAR penalties of $343,298.24. Dispute as to amount, late penalties and interest.) Earlier proceedings, 2021 WL 4768683, 2022 WL 911721 (N.D. Cal.)
- U.S. v. Hyatt, D. N.J. Case 16-cr-420 — Docket — Information — Judgment — Summary, MoreLaw — DOJ Press Release, "Connecticut Man Pleads Guilty to Concealing Income from Undeclared Panamanian Bank Account. Defendant to Pay Full Restitution to IRS and Civil Penalty of More Than $850,000"
- Jarnagin v. U.S., 134 Fed.Cl. 368 (Nov. 30, 2017) ("For the reasons set forth below, the Court concludes that the Jarnagins did not exercise ordinary business care and prudence with respect to their obligation to file the reports at issue and thus cannot avail themselves of the reasonable cause defense.")
- U.S. v. All Assets Held at Bank Julius Baer & Company, Guernsey Branch, in name of Lazarenko et al., 142 F. Supp. 3d 37 (D.D.C. 2015) ("eleven-year-old in rem asset forfeiture action has been described in multiple opinions by Judge Friedman. See, e.g., United States v. All Assets Held at Bank Julius Baer & Co., Ltd., 772 F. Supp. 2d 191. FBAR issues.) — Comment, Jack Townsend, "Bank Julius Baer, a Category 1 Bank, Enters Deferred Prosecution Agreement with Payment of $547 Million" (2/4/16)
- U.S v. All Asses Held at Bank Julius Baer & Company, Ltd., 2019 WL 2372494 (N.D. Cal.)
- U.S. v. Kahn, 5 F.4th 167 (2nd Cir. 2020), Earlier proceeding 2019 WL 8587295 (E.D. N.Y.) ("The Government seeks summary judgment in the amount of $4,590,697.32, plus statutory additions and interest” from co-executors as FBAR penalty against decedent who failed to disclose funds held at Credit Suisse.)
- U.S. v. Kalai, 696 Fed.App'x. 228 (9th Cir. 2017) ("appeals from his jury convictions for one count of conspiracy to defraud the United States" in relation to willful failure to file FBARs) — DOJ Press Release, "Tax Return Preparers Convicted of Assisting Wealthy Clients Hide Millions in Secret Offshore Accounts at Israeli Banks"
- U.S. v. Dan Kalili, David Kalili and David Azarian, N.D. Cal. DOJ Press Release, "Southern California Residents Sentenced to Prison for Hiding Millions of Dollars in Secret Foreign Bank Accounts; Failed to Report Swiss and Israeli Accounts Held for Over a Decade"
- Kalo v. Comm'r, 149 F.3d 1183, 81 AFTR 2d 98-2266 (6th Cir. 1998) ("Taxpayer's business problems and his lack of malpractice insurance prompted him to hide a significant amount of money in foreign bank accounts. … The couple, however, neither disclosed the existence of these foreign bank accounts nor reported how much interest income they received from them when they filed their original income tax returns.")
- U.S. v. Kaminsky, N.D. Ga., Case 14-382 — Docket — Criminal Information — Judgment — DOJ Press Releases #1 #2 — Comment, Jack Townsend, "Another UBS Client Sentenced Lightly (3/4/15)" — Comment, Laura Saunders, "How Cheating on Your Taxes Can Lead to Prison. The cautionary tale of an entrepreneur with a Swiss bank account", Wall St. J., Mar. 13, 2015 (Archived copy)
- U.S. v. Kampfen, N.D. Cal., Case 13-cr-369 — Docket — Information — Gov't Sentencing Memo — Judgment — DOJ Press Release, "Former Swiss Banker Pleads Guilty to Failure to Report Foreign Bank Account" — Comment, Jack Townsend, "A Swiss Bank Related Sentencing (10/8/13)" — Kampfen Investment Services (ex-Julius Baer)
- Kaplan v. Comm'r, T.C. Memo. 2014-43 (Further proceedings as Nineveh Investments Ltd. v. United States)
- U.S. v. Kashfi, C.D. Cal., Case 13-cr-00241 — Judgment — DOJ Press Release — Comment, Anthony Parent, "Unreported Foreign Bank Accounts: Department Of Justice Rulings" — Comment, "Non-Expat Tax Evaders Hide Money in Israeli Banks" Comment, Jack Townsend, "Plea to Offshore Bank Charges Related to Israeli Banks" (4/12/13)
- U.S. v. Katholos, W.D. N.Y., Case 17-cv-00531 — Complaint — Answer — Request for judicial assistance to Greece — Request for judicial assistance to Liechtenstein — Compare: U.S. v. Cruz, 698 F.2d 1148 (11th Cir. 1983), cert. denied, 464 U.S. 960 (1983) — Comment, Jack Townsend, under "FBAR Collection Suit Against Person Convicted of Willfully Failing to File FBAR" (12/11/18) — Comment, Virginia La Torre Jeker, "Mr. FBAR – He Lurks in Every Corner – Katholos Case Expands Meaning of “Financial Interest'", Oct. 6, 2022
- U.S. v. Katwyk, 2017 WL 6021420, 120 A.F.T.R.2d 2017-6380 (C.D. Cal. 2017)
- U.S. v. Kaufman, 2021 U.S. Dist. LEXIS 4602, 2021 WL 83478, 2022 WL 19334 (D. Conn.), Case 3:18-cv-00787 — Docket — Defendant's consolidated memorandum of law — (Rejecting imposition of non-willful penalties by account and not by FBAR form; cf. U.S. v. Bittner, 143 S.Ct. 713 (2023), above. The Government appealed to the 2nd Circuit, and on June 30, 2022 "The Government moves the Court to stay this appeal pending a decision by the Supreme Court in Bittner v. United States (S. Ct. No. 21-1195)." Case discussed in Ruggieri et al, "Implications of Recent Foreign Bank Account Reporting Litigation", 21 ATA J. of Legal Tax Research 45 (2023).
- U.S. v. Kelley-Hunter (Estate of Burt Hunter), 281 F.Supp.3d 121 (D.D.C. 2017) (UBS disclosure case; issue of willfulness)
- U.S. v. James J. Kelly, Jr., 2023 U.S. Dist. LEXIS 76346, 2023 WL 3212718 (E.D. Mich.) (Appeal pending) (UBS client; Judgment for IRS for of $929,904.94 in FBAR penalty and $22,968.42 in pre-judgment interest.)
- Kentera v. U.S., E.D. Wis., Case 16-cv-1020 (Jan. 30, 2017), 2017 WL 401228 — Judgment (taxpayer alleged violations of the Administrative Procedures Act) Comment, Jack Townsend, "Court Denies FBAR Penalty Relief Under APA, Requiring Alternative Paths to Remedy" (2/3/17) — Comment Leslie Book, Procedurally Taxing, "Challenging an FBAR Penalty: District Court Says APA Not the Ticket", Feb. 16, 2017
- U.S. v. Kepke, 2022 U.S. Dist. LEXIS 196785 (N.D. Cal.) — David Thomas, Reuters, Nov. 28, 2022, Houston tax lawyer charged in $225 million U.S. tax scheme dies before trial"
- U.S. v. Kerr, Quiel and Rusch, Case 11-cr-02385-JAT, D. Ariz. (2011) Indictment — Trial brief for Government — Comment, Jack Townsend, "Convictions of U.S. Persons Related to UBS and Pictet Accounts" (4/12/13) and Christopher M. Rusch was disbarred in California — Comment (on Rusch), Jack Townsend, "U.S. Attorney Enabler Sentenced for Assisting Offshore Evasion" (3/19/14)
- U.S. v. Kerr and Quiel, 2013 U.S. Dist. LEXIS 116327; 112 A.F.T.R.2d (RIA) 5772 (D. Ariz. 2013) (no error in the admission of testimony of defendants' former attorney) U.S. v. Kerr, 595 Fed.App'x. 692; 2014 U.S. App. LEXIS 24049 (9th Cir. 2014) (Affirming conviction for making and subscribing false tax returns) — Comment, Jack Townsend: Links to 5 blog entries
U.S. v. Kerr, 2014 U.S. Dist. LEXIS 67589 (D. Aria. 2014) (Motion to supplement the record denied)
U.S. v. Kerr, 2015 U.S. Dist. LEXIS 92023 (D. Ariz. 2015) (Motion for new trial denied)
U.S. v. Kerr, 2016 U.S. Dist. LEXIS 95897 (D. Ariz. 2016) (Postconviction procedural matters, FBAR failure-to-file prosecution)
U.S. v. Kerr, 120 AFTR 2d 2017-6066 (9th Cir. 2017) (Court version) (Claim that "defendants' lawyer, Christopher Rusch, had engaged in criminal and fraudulent behavior before, during, and after the trial, in part by blogging and podcasting" did not justify new trial or limited remand) — Comment, Jack Townsend, "Convictions of U.S. Persons Related to UBS and Pictet Accounts" (4/12/13)
U.S. v. Kerr, 2023 U.S. Dist. LEXIS 34140, 2023 WL 2308415 (D. Ariz.) ("In 2019, Plaintiff filed the present civil action seeking to recover over $4.2 million due to late payment fees and interest.") Recalculation of amount due to the Government.
- U.S. v. Teymour Khoubian, Case 17-cr-0052 (C.D. Cal.),— Indictment — Plea agreement — DOJ Press Release — Comment, Jack Townsend, "Yet Another Offshore Account Plea (11/19/18)" — Complaint to reduce FBAR penalty to judgment
- U.S. v. Hyung Kwon Kim, E.D. Va. No. 17-cr-00248 — Docket — Criminal information — Statement of Facts — Plea agreement — Sentencing Memorandum ("The government is also filing a motion pursuant to Section 5K of the guidelines recommending a 50% reduction from the 18 months for a sentence of 9 months based on the defendant’s substantial assistance in the investigation and prosecution of others.") — Sentence: DOJ Press Release ("Failed to Report Foreign Financial Accounts with Value Exceeding $28 Million") — Comment, Jack Townsend, "Offshore Account Defendant Sentence with Court Accepting Government's New Position on Guidelines Calculations" (1/25/18).
- Kimble v. U.S., 141 Fed. Cl. 373 (2018) ("Around the time that UBS entered into the deferred prosecution agreement, Mrs. Kimble decided to seek admittance to the IRS’s Offshore Voluntary Disclosure Program ('OVDP')." … "whether the Internal Revenue Service ('IRS') must establish that a taxpayer had knowledge of the legal duty under federal tax law to report foreign bank accounts, but acted in 'reckless disregard' of that duty, before it may impose a civil penalty for a willful violation of 31 U.S.C. § 5314; and (2) whether the maximum penalty for a willful violation of 31 U.S.C. § 5314, as set forth in 31 U.S.C. § 5321(a)(5)(C)(i) (2004), supersedes 31 C.F.R. § 1010.820(g)(2)") Kimble was sufficiently reckless to invoke the FBAR civil willfulness penalty. — Comment, Jack Townsend, "Court of Federal Claims Holds that Not Reading The Schedule B Foreign Account False Answer Justifies FBAR Willful Penalty" (12/28/18) — Motion and brief of the Government seeking summary judgment — Comment, Joseph Viola, "Court decision widens divide on maximum willful FBAR penalties" (2019) — Affirmed, 991 F.3d 1238 (Fed. Cir. 2021)
- U.S. v. Kordash — DOJ Press Release, "New Jersey Man Sentenced To Three Months In Prison In Manhattan Federal Court For Hiding Over $1 Million In Secret Swiss Bank Account"
- U.S. v. Kotzev, 2022 U.S. Dist. LEXIS 12697, 2022 WL 212702; 2022 U.S. Dist. LEXIS 45211, 2022 WL 706949, Appeal dismissed, 2022 U.S. App. LEXIS 21207 (4th Cir. 2022), prior history 2020 U.S. Dist. LEXIS 43297, 2020 WL 1217153 (E.D. Va. 2020) (IRS enforcement of $1.3 million judgment lien against real property for Kotzev's failure to file FBARs for years 2008 to 2012)
- Koussa v. U.S., 2021 U.S. Dist. LEXIS 260384, 2021 WL 9182423 (N.D. Tex.) FBAR penalty refund suit. ("Though this Court does not have jurisdiction to adjudicate Plaintiff's claim under the Little Tucker Act, § 1340, or § 1355, the Tucker Act provides for exclusive jurisdiction in the Court of Federal Claims and waives the United States’ sovereign immunity for claims it covers.")
- Kramer v. Comm'r, T.C. Memo 2021-16 ("Our finding fraud with respect to the 2004 through 2008 taxable years therefore lifts the periods of limitations for those years") — Freeman Law comment
- U.S. v. Lack, S.D. Fla., Case 11-60184 — Docket — Indictment — Notice of Sentencing Hearing — Judgment — DOJ Press Release, "Former UBS Banker Charged with Helping U.S. Taxpayers Use Secret Swiss Bank Accounts to Evade U.S. Taxes. Investment Advisor Encouraged U.S. Taxpayers Not to Disclose Accounts to Internal Revenue Service" — Comment, Robert W. Wood, "No Jail In UBS Tax Evasion Case", Forbes, Dec. 3, 2011
- Lamprecht v. Comm'r, T.C. Memo 2022-91 (Another copy) UBS client and financial advisor. Amended returns filed after IRS had knowledge of facts, so not "qualified amended returns". Judgment records the history of the Swiss Bank Program. ("Finding no genuine dispute of material fact, we will grant the Commissioner's motion for summary judgment") — Notice of Appeal — Freeman Law comment, Sept. 23, 2022. Johannes and Linda Lamprecht seem now to be living and working in Switzerland at HL88 Advisory AG, Herrliberg.
- Landa v. U.S., 153 Fed.Cl. 585 (2021) Swiss account ("In early 1980, the plaintiff learned from his father that the plaintiff’s grandfather had deposited money into an account in Switzerland during World War II")
- U.S. v. Landegger, S.D.N.Y. Case DOJ Press Release, "CEO And Chairman Of International Pulp Mill Company Pleads Guilty In Manhattan Federal Court To Hiding Over $8.4 Million In Secret Swiss Bank Accounts"
- U.S. v. James K. Lee, 2020 WL 4573259 (E.D. Wis.) ("[J]udgment is entered in favor of the United States and against defendant James K. Lee, as a penalty for failure to timely file a Report of Foreign Bank and Financial Accounts for the 2009, 2010, and 2011 years, the sum of $1,258,923.45")
- U.S. v. Lieber, 566 F.Supp.3d 110 (D. Mass. 2021) Civil fraud penalties imposed on unpaid taxes accruing more than three years before filing of bankruptcy petition were dischargeable, even though debt for unpaid taxes was not dischargeable on ground of fraud. Docket with downloadable links — Judgment (May 8, 2023) (imprisonment for time served) ("Defendant was charged with making false statements to the government of the United States, filing a false tax return, and failing to report a foreign bank and financial account. Defendant filed motion to suppress his post-arrest statements.") — Gov't sentencing memo — Case history: 2022 WL 3996696 (D. Mass.) — Bruce Zagaris, "Harvard Professor Lieber Convicted For False Statements And Tax Offenses For China Links", 38 No. 1 Int'l Enforcement L. Rep. 38 (2022) — Viola comment, Nov. 7, 2022, "Harvard professor struggles to defend against criminal tax and fbar charges" — Ed. note: along with Xiao (case below) Prof. Lieber was targeted for China links; tax charges arose from that.
- U.S. v. Lipukhin, W.D. Mo., Case 14-cr-71 — Docket — Indictment — DOJ Press Release, "Former President of Russian Steel Producer’s U.S. Subsidiary Indicted for Hiding Assets in Secret Swiss Bank Accounts" — Comment, Jack Townsend, "Another UBS Depositor Indicted; the Russian Connection" (3/21/14)
- U.S. v. Little, 2017 WL 1743837, 2017 U.S. Dist. LEXIS 67580 (S.D.N.Y. 2017) ("Defendant Michael Little moves for partial dismissal of the Second Superseding Indictment on the grounds that his prosecution for failure to file individual income tax returns and Reports of Foreign Bank and Financial Accounts ('FBARs') would deprive him of due process of law in violation of the Fifth Amendment to the United States Constitution.")
U.S. v. Little, 119 AFTR 2d 2017-1715, 2017 U.S. Dist. LEXIS 67580 (S.D. N.Y. 2017) (Prosecution over undeclared offshore accounts)
U.S. v. Little, 2018 U.S. Dist. LEXIS 187643 (S.D. N.Y. 2018) ("Michael Little, a lawyer and an offshore account enabler.") — Comment, Jack Townsend, "Offshore Account Enabler Post Conviction Motions for Acquittal and New Trial Denied; Issue on Reliance of Counsel" (11/11/18; 11/15/18) — Comment, Jack Townsend, "Michael Little, British/US Lawyer, Convicted for Offshore Account Enabler and Personal Income Tax Charges" (4/22/18) — DOJ Press Release, "British Lawyer Found Guilty After Trial For His Participation In Multimillion-Dollar Tax Fraud Scheme Involving Swiss Bank Accounts"
119 AFTR 2d 2017-1715, 2017 U.S. Dist. LEXIS 67580 (S.D. N.Y. 2017) (Prosecution over undeclared offshore accounts)
U.S. v. Little, 828 Fed.App'x. 34 (2nd Cir. 2020) ("Michael J. Little appeals from the judgment of conviction on nineteen counts arising from a scheme to conceal assets from the Internal Revenue Service.")
U.S. v. Little, 2021 WL 1226890 (S.D. N.Y.) ("Defendant Michael Little was convicted at trial on all nineteen counts in a Superseding Indictment. The charges related to Little's role in assisting the heirs to Harry Seggerman's multimillion-dollar estate to evade paying taxes on their inheritances from 2001 to 2010 and Little's failure to file documents reporting his own income from 2005 to 2010.")
- U.S. v. Lui, 120 AFTR 2d 2017-5332, 2017 U.S. Dist. LEXIS 119953 (N.D. Cal. 2017) — Order granting summons — Comment, Jack Townsend, "Taxpayer Successfully Shows Non Possession and Control to Avoid Summons and Successfully in Most Part Asserted Fifth Amendment" (8/5/17; 8/20/17) (with link to court docket listing documents downloadable from PACER or RECAP)
- In re: Igor Lukashin, 9th Cir. 22-80034, Docket — Petition for Certiorari suppl. brief
- In re MH, 648 F.3d 1067 (9th Cir. 2011) (Required records doctrine, overriding 5th Amendment privilege, applied to IRS effort to determine whether taxpayer used secret Swiss bank accounts to evade paying federal taxes. — Comment, Jeremy H. Temkin, "Second Circuit Tackles Required Records Exception". N.Y.L.J., Jan. 15, 2014. — Comment, Jack Townsend, "9th Circuit Applies Required Records Doctrine to Defeat 5th Amendment Claim for FBAR Recordkeeping" (8/19/11)
- U.S. v. Maali, 346 F. Supp. 2d 1226 (M.D. Fla. 2004)
- U.S. v. McBride, 110 AFTR 2d 2012-6600, 908 F. Supp. 2d 1186 (D. Utah 2012) (case to collect a civil penalty for alleged willful failure to report interest in four foreign bank accounts) — Comment, Hale Sheppard, "Government Wins Second Willful FBAR Penalty Case: What McBride Really Means to Taxpayers with Unreported Foreign Accounts", 118 J. of Taxation (Apr. 2013) — Comment, Jack Townsend, "Hale Sheppard Article on Willful FBAR Penalty Cases" (4/26/13)
- U.S. v. McCarthy, M.D. Cal. DOJ Press Release, "Malibu man agrees to plead guilty to willful failure to disclose UBS Swiss bank accounts to the IRS"
- McKay v. U.S. 957 F.2d 689 (9th Cir. 1992) Civil fraud penalties imposed on unpaid taxes accruing more than three years before filing of bankruptcy petition were dischargeable, even though debt for unpaid taxes was not dischargeable on ground of fraud. — FBAR penalties are not dischargeable in bankruptcy: U.S. v. Simonelli, 614 F.Supp.2d 241 (D. Conn. 2008)
- U.S. v. Manafort cases:
- U.S. v. Paul J. Manafort and Richard W. Gates III, D.D.C. 17-cr-00201 — Docket — Indictment — Manafort response to Special Counsel submission — Defdt. Sentencing Memo
- D.D.C. 18-cr-00011 — Docket
- 313 F.Supp.3d 213 (D. D.C. June 21, 2018) — Order
- E.D. Va. 18-cr-00083 — Docket — Government sentencing reply memorandum
- FreeLaw Project: "The Special Counsel Cases"
- Comments, Jack Townsend, "Paul Manafort Verdict - On Relevant Conduct" (8/21/18) and "TRAC Report on Sentencing Discretion and Disparity" (3/21/19) and "Update on Manafort Convictions Status" (8/31/18)
- New York Times, Comment on sentence (Archived copy)
- New York Times, "The Daintiest Slap on Paul Manafort’s Wrist, Manafort sought judicial compassion. On Thursday, he got it" (Archived copy)
- Tax Controversy 360, "Manafort Indictment Is a Good Reminder of FBAR Disclosure Requirements"
- Wikipedia, Trials of Paul Manafort (description and links)
- New York Times, "Paul Manafort Forfeits $22 Million in New York Real Estate in Plea Deal" (Archived copy)
- Robert W. Wood (Forbes, Oct. 2017), "IRS Tax Lessons For Everyone From Paul Manafort Indictment"
- Forfeiture list
- Jack Townsend, "Special Counsel Opposes Motion to Dismiss FBAR Count as Untimely Because of Secret 18 USC 3292 Order" (5/15/18)
- U.S. v. Mani, C.D. Cal., Case 17-cr-322 — Docket — Information — Gov't Position re Sentencing — Def't Position re Sentencing — Supplement to Gov't Pos re Sentencing — Plea Agreement — Judgment — DOJ Press Release — Comment, Canyon News (Archived copy) — Comment, Jack Townsend, "California Plastic Surgeon Sentenced to One Year and One Day for FBAR Violation" (9/14/18)
- Maze v. IRS, 206 F.Supp.3d 1 (D. D.C. 2016) (Transition rules between old OVDP IRS compliance program and subsequent (2014) "Streamlined Procedures")
- U.S. v. Markus, 2018 U.S. Dist. LEXIS 118871, 2018 WL 3435068, 2018-2 U.S. Tax Cas. (CCH) P50,340 (D. N.J. 2018) ("John Alfay Salama Markus sold confidential bidding information concerning U.S. government contracts in Iraq in exchange for kickbacks and bribes and did not report this income for the purposes of his taxes… Markus failed to file a Report of Foreign Bank and Financial Accounts ('FBAR')") — Indictment — DOJ Press Release, "Former U.S. Army Corps Of Engineers Employee Pleads Guilty To Multimillion-Dollar Bribery, Kickback Scheme" — Comment, Jack Townsend, "District Court Grants Government Summary Judgment for FBAR Willfulness Civil Penalty" (7/23/18)
- U.S. v. Marsteller, 2018 U.S. Dist. LEXIS 164706, 2018 WL 4604033 (W.D. Va.) (The "United States filed the instant action seeking to collect civil penalties assessed against the defendant, John Marsteller, for failing to report his interest in foreign bank accounts as required by the Bank Secrecy Act of 1970.")
- U.S. v. Matkari, 2019 WL 1253684, 2019 U.S. Dist. LEXIS 44852 (D. Colo. 2019) ("Petitioner is the Internal Revenue Service ('IRS'), which is attempting to exercise its civil audit power to conduct an investigation for the purpose of determining Respondent's federal income tax liabilities for 2011 through 2014, and whether Petitioner should assess penalties for Respondent's failure to properly report his interest in foreign bank accounts")
- U.S. v. Matsa, S.D. Ohio, Case 09-cr-297 — Opinion and Order, 10/19/10 — Judgment on Motion to Vacate — DOJ Press Release, "Ohio Attorney Sentenced to 85 Months in Prison for Tax Fraud and Obstruction of Justice Crimes"
U.S. v. Matsa, Appeal, 6th Cir., Case 12-4353, Oct. 25, 2013 — Judgment ("A jury found Aristotle 'Rick' Matsa guilty of various charges for concealing his assets from taxing authorities and obstructing an investigation of the concealment")
- U.S. v. Mahyari, 2023 U.S. Dist. LEXIS 11741, 2023 WL 372656 (D. Ore.) (Iranians resident in the USA failed to disclose funds in blocked Iranian rial account and in Canadian accounts)
- Maze v. IRS, D.D.C., Case 15-5265, July 14, 2017 ("In 2012, the plaintiffs enrolled in a voluntary Internal Revenue Service ('IRS') disclosure program [OVDP] that allowed them to become tax code compliant on relatively favorable terms. In 2014, however, the plaintiffs wanted to change course; they sought enrollment in a new IRS disclosure program with a different tax treatment. The IRS rejected the plaintiffs' request and they then brought suit.") — Appellate Brief, 2017 WL 727938 (C.A.D.C.)
Maze v. IRS, 206 F.Supp.3d 1, 118 A.F.T.R.2d 2016-5226, 2016-2 USTC P 50,359 (D. D.C. 2016) ("Taxpayers who had failed to report funds held in foreign bank accounts and who had entered in the Offshore Voluntary Disclosure Program (OVDP), a voluntary disclosure program established by the Internal Revenue Service (IRS) brought action against IRS, alleging violation of the Administrative Procedure Act based on IRS’s failure to provide direct method of entry into Streamlined Filing Compliance Procedures (SFCP)")
- Mendu v. U.S., 153 Fed.Cl. 357 (2021) ("This Court holds that FBAR penalties are not internal-revenue taxes and, therefore, are not subject to the Flora full payment rule.")
- U.S. v. Miga, 2021 WL 8016223 (N.D. Tex.) (Eighth Amendment defense denied; "there is a genuine issue of material fact whether Miga's violation was willful" so Government's motion for summary judgment denied.)
- Miksic v. Boeckermann Grafstrom Mayer, D. Minn., Case 15-539, Mar. 28, 2017, 2017 WL 1169528 (malpractice action alleging those errors were due to negligent tax preparation by firm of accountants; motion for summary judgment denied in part, granted in part) — Docket — Memorandum Opinion and Order (Court version) — Comment, Jack Townsend, "Interesting Offshore Account Malpractice Opinion Denying Summary Judgment" (4/1/17; 4/6/17)
Miksic v. Boeckermann Grafstrom, 2016 WL 6915740 (D. Minn.)
Miksic v. Boeckermann Grafstrom, 2016 WL 11088293 (D. Minn.)
(FBAR and IRC § 6038 penalties)
- Mitchell v. U.S., 2019 WL 3322483 (Ct. Fed. Claims)
- U.S. v. Mizrahi-Tefahot Bank Ltd., C.D. Cal., Case 19-cr-150 — Docket — Deferred Prosecution Agreement
- Charles G. Moore & Kathleen F. Moore v. U.S., 2020 WL 6799022 (W.D. Wash. 2020) Question of constitutionality of TCJA'a Transition Tax, imposing a tax on prior 30 years' unrepatriated profits of controlled foreign corporations. ("By its very nature, the MRT is a retroactive tax. … MRT does not violate due process and, as a tax on income, it is constitutionally valid."), Affirmed, 36 F.4th 930 (9th Cir. 2022) (Tax Notes version with links); Rehearing en banc denied with dissenting arguments, 53 F.4th 507 (9th Cir. 2022); Petition for certiorari granted, 2023 WL 4163201 — SCOTUSblog, with links to briefs — Comment, John Richardson — Comment, Competitive Enterprise Institute Commenet, Amanda Pedvin Varma , Steven R. Dixon, Shree Sharma, "United States: Taking Stock Of Challenges To The TCJA And Its Regulations", Steptoe/Mondaq, June 16, 2023 See Henry Ordower, "Abandoning Realization and the Transition Transition Tax: Toward a Comprehensive Tax Base", 67 Buffalo L. Rev. 1371 (2019) — Aysha Bagchi, Samantha Handler, "Supreme Court May Opt for Narrow Ruling on Foreign Earnings Tax", Bloomberg Law, June 28, 2023 — John R. Brooks, David Gamage, "Moore v. United States and the Original Meaning of Income", Preliminary draft June 26, 2023 — Wall St. J. editorial, June 27, 2023, "A Wealth-Tax Watershed for the Supreme Court: The Justices will hear Moore v. U.S., which asks if ‘income’ under the law can be an unrealized gain" (Print version)
- James Moore v. U.S., 115 AFTR 2d 2015-1375, 2015 U.S. Dist. LEXIS 43979 (W.D. Wash. Apr. 1, 2015) ("Mr. Moore filed this lawsuit to contest the IRS's decision to assess the maximum penalty of $10,000 against him four times, once for each year from 2005 through 2008") — Comment, Jack Townsend, "Court Approves FBAR NonWillful Penalty Merits But Wants Further Development of APA Issues" (4/3/15)
James Moore v. U.S., 116 AFTR 2d 2015-5397 (W.D. Wash. Jul. 24, 2015) — Comment by Leslie Book, Procedurally Taxing Blog ("Mr. Moore filed this lawsuit to contest the IRS's decision to assess the maximum penalty of $10,000 against him four times, once for each year from 2005 through 2008")
- U.S. v. Moran, S.D. Fla. Case 09-cr-60089 — Docket — Motion to Seal Information (Apr. 8, 2009: unsealed after arrest on Apr. 14) Criminal Information — Plea Agreement — — Sentencing Memorandum — Judgment — DOJ Press Release, "UBS Client Pleads Guilty to Filing False Tax Return Hid Assets Worth $3 Million in Secret Swiss Bank Account" — Comment, Jack Townsend, "DOJ Tax Budget Request - The Criminal Parts #5 - Combatting Offshore Tax Schemes" and "Get in Line Brother & Righten That Wrong #3" — Comment, Amir Efrati, "Second American Client Charged in UBS Tax Probe", Wall St. J. Law Blog, Apr. 14, 2009 (Archived copy) — Comment, Lynnley Browning, "UBS Client Pleads Guilty in Tax Case", N.Y. Times, Apr. 14, 2009 — Comment, N.Y. Times, "Yacht Broker Sentenced to 2 Months for Tax Evasion", Nov. 6, 2009 (Archived copy)
- U.S. v. Mrvc, S.D. N.Y. Case 21-8792 — Docket — Complaint — 2023 U.S. Dist. LEXIS 12243, __ F.Supp.3d __, 2023 WL 375223 (S.D. N.Y. Jan. 24, 2023) (IRS pursuit of defendant for FBAR penalties. "The Government has been unsuccessful for months at serving Defendant in Serbia through the Hague Convention, and now seeks to serve Defendant – who may now be located at an unknown address in Bosnia-Herzegovina – through counsel in the United States.") Ed. note: Based on the facts given the defendant may well be located in the Republika Srspka.
- Mukhi v. U.S., E.D. Mo. Case 14-cr-173 — Docket — Indictment — Judgment — DOJ Press Release, "St. Louis County Man Sentenced On Tax Charges" (3 years' probation, fine and restitution. Amount of fine compared with schedule of undeclared assets abroad suggests a time-bar and perhaps due process issues. See docket.)
- Nance v. U.S., 111 AFTR 2d 2013-1616, 2013 WL 1500987 (W.D. Tenn. 2013) (Complaint seeking a refund of tax penalties) — Comment, Jack Townsend, "Care Must Be Taken With Closing Agreements in the Offshore Initiatives" (4/13/13)
- U.S. v. Neumann, 2022 U.S. Dist. LEXIS 196847 (S.D. N.Y.) UBS client. ("The United States agrees to accept a total amount of $110,000 (the 'Settlement Amount') in full satisfaction of the Judgment, as long as Defendant pays the Settlement Amount in full and it is received by the United States on or before September 15, 2022.")
- Nineveh Investments Ltd. v. U. S., 2017 U.S. Dist. LEXIS 199486 (E.D. Penn. 2017) — Docket — ("Kaplan's tax obligations stem from the sale of his shares in BetOnSports, PLC, an overseas gambling operation"; the proceeds were settled on two trusts based in the Isle of Jersey.) The judgment notes that the U.S. Government has not consented to be sued in foreign courts. Since the decision in United States v. Harden,  S.C.R. 366 the U.S. Government has not brought suit in its own name in foreign courts in its own name to collect taxes. The risks are that a foreign court would either rule on a matter of U.S. law or entertain a counterclaim by the defendant. Compare the Foreign Sovereign Immunities Act and Cabiri v. Ghana, 165 F.3d 193 (2d Cir. 1999) Sean D. Murphy, United States Practice in International Law, vols. 1 & 2 (Cambridge 2009, 2011)
- Norman v. U.S., 117 AFTR 2d 2016-1279 (126 Fed. Cl. 277) (Ct, Cl. 2016) (Question of jurisdiction of Court of Federal Claims)
Norman v. U.S., 138 Fed. Cl. 189 (July 31, 2018) Court of Federal Claims, Case 15-cv-872T, opinion and order, July 31, 2018 (Court version) (civil penalty, failure to file, willfulness) ("Mindy P. Norman ('Ms. Norman') was assessed a penalty under the Bank Secrecy Act by the Internal Revenue Service ('IRS') in the amount of $803,530.00. This penalty was assessed for a willful failure to file a Report of Foreign Bank and Financial Account ('FBAR') in connection to a Swiss bank account she had in 2007.") — Comment, Jack Townsend, "Court of Federal Claims Rejects Colliot; FBAR Willful Penalty Not Limited to $100,000 (8/1/18)" — Comment, Mark Aquilio, , J. Accountancy, Dec. 2018 (Archived copy)
Appeal: Norman v. U.S., 942 F.3d 1111 (Fed. Cir. 2019), affirming Court of Federal Claims decision.
- U.S. v. Olenicoff, C.D. Cal. Case 07-cr-227 — Docket — Criminal Information — Sentencing Memo — Judgment (Fine: $3,500; Probation: 2 years; Payment of back taxes; 120 hours community service) — Comment, Jack Townsend, "Convicted Tax Evader Complains About His Enabler" — Comment, Robert Frank, "Mystery Billionaire Avoids Taxes on $200 Million", Wealth Blog, May 13, 2008 (Archived copy) — Comment, Sean Stewart-Muniz, "More of 'Panama Papers' South Florida connection". Two billionaires with local ties hid their assets using offshore companies", The Real Deal, Apr. 6, 2016 — Janet Novack and Tatiana Serafin, "The Billionaire With The Empty Pockets", Forbes, Sept. 22., 2006 — IRS, "Offshore Tax-Avoidance and IRS Compliance Efforts" ("Dec. 12, 2007 — Igor Olenicoff, president and owner of Olen Properties Corporation, pleaded guilty to filing a false tax return for tax year 2002 related to foreign bank accounts he failed to disclose to the IRS. As part of his plea agreement, Olenicoff paid $52 million to the IRS for six years of back taxes, penalties, and interest. Olenicoff was sentenced in April 2008, in Santa Ana, Calif., to two years’ probation and 120 hours of community service.")
Birkinfeld v. Olenicoff, 2017 Cal. App. Unpub. LEXIS 7675 (Cal. Ct. App. 4th Dist. Div. 3 2017), — Comment, Jack Townsend, "Birkenfeld Loses Malicious Prosecution Suit and Appeal Against His Partner in Crime, Olenicoff" (11/13/17)
- U.S. v. Ott, 2019 WL 3714491 (E.D. Mich.) — Docket — Complaint — Gov't Motion Summary Judgment — Comment, Law360, "Mich. Woman Must Face Penalties For Unreported Foreign Accounts" (Archived copy); 441 F.Supp.3d 521 (E.D.Mich. 2020) (willfulness)
- U.S. v. Owens, Brauer, Gaffey and von der Goltz, S.D. N.Y. Case 18-cr-693 — Docket — Indictment (Mossack-Fonseca law firm principals; Panama Papers investigation) — Comment, Jack Townsend, "Enablers and Taxpayer Related to Panama Papers Disclosures Indicted" (12/4/18) —DOJ Press Release, "Four Defendants Charged In Panama Papers Investigation", Dec. 4, 2018
- U.S. v. Padula, M.D. Fla. No. 17-cr-15-SPC-MRM-1 Dept. of Justice Press Release — Judgment — Comment, Jack Townsend, "Another Offshore Account Guilty Plea Coupled with Bank Fraud Conspiracy" (3/25/17) — DOJ Press Release, "Florida Businessman Sentenced To Prison For Conspiring To Commit Tax And Bank Fraud"
- U.S. v. Palmer, 118 AFTR 2d 2016-6444 (M.D. Fla. 2016) — Complaint ("[D]efendant Palmer is a United States citizen who currently resides abroad. … From 2006 through 2008, Palmer had a financial interest in … two accounts at Clariden Leu Bank in Switzerland. Both of these accounts were in the name of Liechtenstein trusts. … In 2009, Palmer requested admission into the IRS's Offshore Voluntary Disclosure Initiative (OVDI).") — Order
- U.S. v. Paltzer, 2019 WL 1448362, 2019 U.S. Dist. LEXIS 63558 (S.D. N.Y.), No. 13-cr-282 — Indictment (with Stefan Buck who was acquitted, see above) — Docket (CourtListener, with downloadable documents from PACER and RECAP) —Zurich Website — Paradise Papers — David Enrich, N.Y. Times, Jan. 6, 2018, "A Swiss Banker Helped Americans Dodge Taxes. Was It a Crime? Stefan Buck created bank accounts for dozens of Americans hiding money from tax collectors. The U.S. tried to hold him personally accountable."
- Stefan Buck created bank accounts for dozens of Americans hiding money from tax collectors. The U.S. tried to hold him personally accountable."
- U.S. v. Patel, D.C.D. Cal. Case 16-cv-03506 (Mar. 21, 2017) ("Defendant Ashish Patel is personally liable and indebted to the United States of America for the failure-to-pay the assessed FBAR penalty,")
- U.S. v. Pflueger, D. Haw. Case 10-cr-631 — 2012 WL 1082041, 2012 U.S. Dist. LEXIS 43945 (D. Haw. 2012) (Motion to dismiss denied) — Indictment — Order Denying Motion to Dismiss
- U.S. v. Pomerantz, 119 AFTR 2d 2017-2113 (W.D. Wash. 2017) (Court version) (Nonresident dual U.S.-Canadian citizen, questions of willfulness and time bar)
U.S. v. Pomerantz, 120 AFTR 2d 2017-6095 (W.D. Wash. 2017) (Denial of motion to dismiss) — Comment, Isaac Brock Society — Patricia Cain, "U.S. sues Vancouver dual citizen for over $1M for not reporting accounts". Global News, March 16, 2017
U.S. v. Pomerantz, 120 AFTR 2d 2017-6095 (W.D. Wash. 2017) (Denial of motion to dismiss)
U.S. v. Pomerantz, 2017WL4418572 (W.D. Wash. 2018) — Complaint — Judgment ("Judgment is hereby entered AGAINST Defendant Jeffrey Pomerantz, and in favor of Plaintiff, the United States of America, in the amount of $860,300.35, together with interest, penalties and administrative costs") (One of a small number of cases brought by the IRS against nonresident dual-citizens)
- U.S. v. Pursley, S.D. Tex, Case 18-cr-575 — Docket — Indictment — Gov't Brief on Evidence — Jury Verdict
- U.S. v. Rum, 2019 WL 3943250, 2019 WL 5188325 (M.D. Fla.) — Affirmed 005 F.3d 882
- U.S. v. Quiel, 114 AFTR 2d 2014-6984, 595 Fed.App'x 692 (9th Cir. 2014) (false tax returns and failure to file FBARs) Comment by Jack Townsend
Quiel v. U.S., D. Ariz. case 16-01535 (Oct. 24, 2017) ("On December 8, 2011, a grand jury indicted Movant Michael Quiel with one count of Conspiracy to Defraud the United States, two counts of Willful Subscription to False Individual Income Tax Returns, and two counts of Willful Failure to File Reports of Foreign Bank and Financial Accounts ('FBAR').")
U.S. v. Quiel, 114 AFTR 2d 2014-6984, 595 Fed.App'x 692 (9th Cir. 2014) (Court version of Memorandum) (false tax returns and failure to file FBARs) Comment by Jack Townsend, "Convictions of U.S. Persons Related to UBS and Pictet Accounts" (4/12/13)
- U.S. v. Quintero, S.D. Fla., Case 12-cr-20192 — Docket — Criminal Information — Plea Agreement — Amended Judgment ("The defendant is hereby committed to the custody of the United States Bureau of Prisons to be imprisoned for a term of 4 months.") — DOJ Press Release — Comment, Jack Townsend, "Another UBS Client is Sentenced" (7/26/12) — Comment, Kevin Gale, "Ex-UBS client in Miami Beach gets four months for secret Swiss accounts", So. Fla. Business J., July 26, 2012
- U.S. v. Radchik, 119 AFTR 2d 2017-2039 (D. N.J. 2017) (tax preparer privilege of confidentiality; 5th Amendment rights)
- Rafizadeh v. Comm'r, 150 T.C. No. 1 (2018) — Comment, Procedurally Taxing Blog, "Extended Statute of Limitations for Unreported Income Does not Apply to Gross Income for Failure to Report Foreign Financial Assets before Enactment of IRC 6038D" — Comment, Robert S. Horwitz, "Tax Court to IRS: You’re Too Late Baby"
- U.S. v. Rahman, E.D. Va. Case 12-cr-438 — DOJ Docket information — Indictment — DOJ Press Release — Comment, Law School FCPA Clearinghouse, Case history
- U.S. v. Ramchandani, E.D. N.Y. — Docket — Criminal information — Sentencing Memo — Crim. Cause for Sentencing — Judgment DOJ — Press Release
- U.S. v. Reiss, S.D. N.Y. Case 11-668 — Docket — Criminal Information — Judgment — Order re transfer deft's Netherlands passport — DOJ Press Release
- Retfalvi v. U.S., 335 F.Supp.3d 791 (E.D. N.C. 2018) (U.S.-Canadian citizen/physician's refund complaint, seeking to recover amounts IRS levied pursuant to U.S.-Canada treaty and Canada's collection assistance request for unpaid Canadian taxes dismissed) (Cf. Dewees, above)
- U.S. v. Ritdet, N.D. Cal. Case 14-cr-215 — Docket — Indictment — Judgment — DOJ Press Release, "Owners Of Ukiah Restaurants Charged With Tax Fraud: Yaowapha Ritdet and Steve Walter"
- U.S. v. Robbins. S.D. N.Y. Case 10-cr-333 — Docket — Criminal Information — Consent to proceed before Magistrate Judge — Agreement to forfeit property — Sentencing Memo — Comment, Jack Townsend, "Yet Another UBS Client Bites the Dust" — DOJ Press Release, "Former UBS client pays $20.8 million penalty for hiding over $41 million in Swiss bank accounts" — Comment, Janet Novack, "How A $200,000 UBS Account Grew Into A $21 Million Penalty", Forbes, Sept. 22, 2010
- U.S. v. Sean Roberts and Nadia Roberts, E.D. Cal., Case 12-cv-724 — Docket —DOJ Press Release, "California UBS Clients Plead Guilty to Hiding Assets in Secret Swiss Bank Account"
- Roberts et al v. UBS AG et al, E.D. Cal. Case 12-cv-724, 2013 U.S. Dist. LEXIS 12779, 2013 WL 394701 ("A global financial services provider's motion to dismiss their clients' fraudulent concealment and negligent misrepresentation claims was granted where the complaint did not specifically attribute the alleged misrepresentations to identified individuals") — Docket (via Court Listener) — Docket (Justia) — Complaint — Order requiring Plaintiffs to file proofs of service or notices of dismissal for defendants Schumacher and Rickenbacher — Comment, Jack Townsend, "UBS Depositors Fail on Pleadings in Civil Case Against UBS" (2/2/13)
Roberts v. UBS AG, 2013 WL 1499341 (E.D. Cal. 2013) (Order on UBS motion to dismiss). Also at Justia.com
- U.S. v. Roessel, S.D. Fla. Case 12-60074 — Plea Agreement — DOJ Press Release, "South Florida Retired Businessman Pleads Guilty to Failing to Disclose Assets Held in Swiss Banks" — Comments, Jack Townsend, "Another UBS Related Taxpayer Plea Agreement" (5/31/12) and "Another UBS Client Sentencing" (10/11/12)
- Rost v. U.S. (Estate of Rebold), 2021 U.S. Dist. LEXIS 219240, 2021 WL 5190875 (W.D. Tex.) ("This is a refund suit initially filed by Rebold, who died during its incipience and was replaced by his executor Rost, for the recovery of $596,830.00 in penalties and interest assessed against him by the Internal Revenue Service ('IRS;) pursuant to 26 U.S.C. § 6677.”) Case dismissed.
- U.S. v. Rubinstein, S.D. Fla. Case 09-cr-6166 — Complaint — Comment, Jack Townsend, "DOJ SG 5K1 and § 3553(e) Departure Request for Rubinstein" — DOJ Press Release, "UBS Client Pleads Guilty to Filing False Tax Return" — Comment, Ashby Jones, "First American Client Charged in UBS Tax-Shelter Probe", Wall St. J. Law Blog, Apr. 3, 2009
- U.S. v. Rudolph, D. Mass., Case 10-10360 — Docket — Criminal Information — Plea Agreement — Judgment — IRS, Offshore Tax-Avoidance and IRS Compliance Efforts, ("Oct. 4, 2010: Gregory Rudolph, of Brookline, Mass., pleaded guilty to failing to comply with foreign bank account reporting requirements. UBS bankers assisted Rudolph with creating a shell company registered in the British Virgin Islands and a shell corporation registered in Hong Kong in hiding in excess of $1 million. In October 2010, Rudolph was indicted with Peter Schober.") — DOJ Press Release, "Two Charged in Swiss Bank Tax Scheme", Oct. 27, 2010 — Comment, Jack Townsend, "Other UBS Account Holders are Charged"
- U.S. v. Rum, 995 F.3d 882 (11th Cir. 2021), affirming 2019 U.S. Dist. LEXIS 145931 (M.D. Fla.) ("it is recommended that the Government's Motion for Summary Judgment be granted and Rum's Motion for Summary Judgment be denied.") — Docket — Affirmed 995 F.3d 882 (11th Cir. 2021)
- U.S. v. Virgil Sever Santa, 769 Fed.App'x. 450 (9th Cir. 2018) — E.D. Cal. Case 16-cr-0171 — Docket — Court Listener Docket with links to free documents — Complaint 2013 U.S. Dist. LEXIS 180486, 2013 WL 6840415; 2012 U.S. Dist. LEXIS 50314; 2017 U.S. Dist. LEXIS 166338 — DOJ Press Release, Sept. 22, 2022, "Former Sacramento Man Pleads Guilty to Failing to File Report of Foreign Bank and Financial Accounts"
- U.S. v. Sarshar, 2019 WL 1089132, 2019 U.S. Dist. LEXIS 27845 (C.D. Cal), 2017 WL 2972054 (C.D. Cal.) — Docket — Criminal Information — Comment, Jack Townsend, "Taxpayer with Israeli Bank Accounts Sentenced to 24 Months" (3/13/17; 3/18/17) ("A Los Angeles, California businessman was sentenced to 24 months in prison today for hiding more than $23.5 million in offshore bank accounts") — DOJ Press Release ("Evaded More than $8.3 Million in Federal Taxes Over Seven Years") — Earlier (criminal) proceeding, 2017 WL 2972054 (C.D. Cal. 2017) ("It is ordered that defendant shall pay restitution in the total amount of $8,374,234 pursuant to 18 U.S.C. § 3663A, to victims as set forth in a separate victim list prepared by the Probation Office … Pursuant to Guideline § 5E1.2(a), all fines are waived as the Court finds that the defendant has established that he is unable to pay and is not likely to become able to pay any fine. … Pursuant to the Sentencing Reform Act of1984, it is the judgment of the Court that the defendant, Masud Sarshar, is hereby committed on Counts 1 and 2 of the two-count Information to the custody of the Bureau of Prisons for a term of 24 months, to be served concurrently. … The Court ORDERS defendant to pay FBAR penalty at $18,242,537.65 to the Department of Treasury through the Department of Justice.") — Plea Agreement — DOJ Press Release, "California Businessman Sentenced to Prison for Concealing Over $23.5 Million in Israeli Bank Accounts. Evaded More than $8.3 Million in Federal Taxes Over Seven Years"
- Schaeffler v. U.S., N.D. Tex., Case 15-490 — Docket — Opinion and Order
Appeal, Schaeffler v. U.S., 806 F.3d 34 (2nd Cir. 2015) (IRS summons and attorney-client privilege) — Comment, Procedurally Taxing, "Curtain Finally Comes Down On Schaeffler Privilege Dispute" — LexisNexis Law School Case Brief
- Schlapfer v. C.I.R., 2023 Tax Ct. Memo 67 — OVDP case, statute of limitations. ("Mr. Schlapfer strictly or substantially complied with Treasury Regulation § 301.6501(c)-1(f)(2)(i), (ii), and (iv) by way of his gift tax return, protective filing, Offshore Entity Statement, and Forms 5471. As a result, he adequately disclosed the gift on his 2006 gift tax return, causing the three-year assessment period to commence on November 20, 2013, when he submitted his disclosure package to the OVDP, and end on November 30, 2017 (three years after that date including extensions). Therefore, we conclude that the period of limitations to assess the gift tax expired before the Commissioner issued the notice of deficiency. Accordingly, we will deny the Commissioner's Motion for Summary Judgment and grant Mr. Schlapfer's Cross- Motion for Summary Judgment.")
- U.S. v. Shemesh, 2021 WL 3706735 (D. N.J.) (Suit for unpaid agreed and assessed penalties. "On August 12, 2016, Mr. Shemesh filed 'delinquent FBAR returns' for tax years 2011 through 2015. On September 5, 2017, the Internal revenue Service (“IRS”) notified Mr. Shemesh that it “proposed a penalty for his non-willful failure to timely file FBARs for calendar years 2011 through 2014.”)
- U.S. v. Schiavo, D. Mass., Case 11-cr-10192 — Docket — Criminal Information — Plea Agreement — Judgment — DOJ Press Release — Comment, Randall P. Andreozzi, J.D., and Arlene M. Hibschweiler, "FBAR: Handle With Care", AICPA The Tax Advisor, May 1, 2012 — Comment, Jack Townsend, "A Botched Foreign Account Quiet Disclosure Draws Criminal Charges" (5/19/11) — Comment, Robert W. Wood, "Latest Foreign Account Prosecution Fuels Fears", Forbes, May 23, 2011 ("Observers are struck by the relatively small amounts of income and tax involved and the small size of the account. It ranged from about $65,000 to $150,000. But even more striking was the nature of the disclosure Schiavo made and how the government reacted to it.") — DOJ Press Release, "Bank director charged with hiding foreign assets; used offshore account to conceal income from IRS"
- U.S. v. Schik, 2022 WL 685415 (S.D. N.Y. 2022) ("Because the Court has determined that it cannot grant summary judgment on the question of willfulness, this case must proceed to trial.")
- U.S. v. Schober, D. Mass. Case 10-cr-10359 (see also Schiavo case: "At all times material to this Information, Peter A. Schober, was a resident of Boston, Massachusetts, and was a venture capitalist. Schober and Schiavo have been partners in various business deals since the 1990s") — Docket — Criminal Information — Transcript of plea — Sentencing memo — Attachments to Sentencing Memo — Order and Judgment — DOJ Press Release, "Boston Investor Sentenced for Hiding Assets Overseas at UBS" — Comment, Jack Townsend, "Another UBS Client Sentenced" (10/6/11)
- U.S. v. Estate of Schoenfeld, 344 F.Supp. 2nd 1354 (M.D. Fla. 2018), 16-1248, Sept. 25, 2018 ("Government's efforts to collect a penalty assessed against Steven Schoenfeld pursuant to 31 U.S.C. § 5321 (UBS case; 'Section 5321') based on his failure to file a Foreign Bank Account Report ('FBAR')") — Comment, Jack Townsend, "Court Holds That Liability for FBAR Civil Willful Penalty Survives Death (9/26/18)"; U.S. v. Robert Schoenfeld as distribute of Estate of Steven Schoenfeld, 396 F.Supp.3d 1064 (2019).
- U.S. v. Hansruedi Schumacher and Matthias Rickenbach — Indictment — Sentencing Memorandum — Judgment — DOJ Press Release, "Swiss Banking Executive and Swiss Lawyer Charged with Conspiring to Defraud the United States. Defendants Aided Wealthy Americans Conceal Assets in Secret Swiss Bank Accounts" — Comment, Jack Townsend, "Schumacher, UBS Banker Enabler, Sentenced to Probation Only and Fine" (10/10/15) — Comment, Von Peter Hossli, "Sie machten aus Amerikanern Schweizer" ("They made Americans Swiss"), Blick, Aug. 22, 2009 (via Google Translate) Comment, Reuters, "Swiss banker, lawyer now fugitives in US tax case", Dec. 11, 2009 — Comment, Ashby Jones, "The UBS Matter May Be Settled, But the DOJ Keeps On Plugging", Wall St. J., Aug. 21, 2009 — Roberts v. UBS AG: Order requiring Plaintiffs to file proofs of service or notices of dismissal for defendants Schumacher and Rickenbacher — Comment, Ben Guilfoy, "Swiss Banker Pleads Guilty Days Before Trial In Fla."
- U.S. v. Arthur L. Schwartz, 2006 U.S. Dist. LEXIS 33806, 2006 WL 1662899 (D. Conn.) ("Arthur L. Schwartz pled guilty to an Information charging him with two counts of false statements in violation of 18 U.S.C. § 1001 for statements he made to agents and officers of the IRS in connection with the federal income tax returns of George Landegger—the CEO of the company for which he worked. … George Landegger and his wife Eva have petitioned the Court, via letter, for an order of restitution in connection with Schwartz's sentence for Count I to compensate them for tax penalties and interest they claimed they sustained. … Court declines to order any restitution.") See DOJ Press Release, Jan. 20, 2015: "George Landegger pled guilty on January 16, 2015, to willfully failing to file Reports of Foreign Bank and Financial Accounts (“FBARs”) with the IRS regarding secret Swiss bank accounts"
- U.S. v. Schwarzbaum, S.D. Fla. Case 18-cr-81147, 611 F.Supp.3d 1356 (S.D. Fla. 2020); 2020 WL 2526500; 2019 WL 3997132 (Court version of 8/23/19 order on summary judgment) — Docket — Order on motion for summary judgment — Case documents and comments — Comment, Jack Townsend, "District Court Retains Jurisdiction While Arbitrary and Capricious FBAR Willful Penalty Amount is Remanded to IRS for Recalculation" (5/18/22) — Comment, Anthony N. Verni: "Court orders repatriation of foreign assets to aid in FBAR penalty collections", Nov. 13, 2021
- U.S. v. Suzanne Seggerman and Yvonne Seggerman, S.D. N.Y. 13-cr-216 — Docket — DOJ Press Release, "New York Man Pleads Guilty To Conspiring With Family Members To Commit Tax Fraud By Hiding Over $12 Million In Secret Swiss Bank Accounts" (Aug. 28, 2013) — Comment, Jack Townsend, "Another Seggerman Family Member Pleads to Charges Related to Foreign Bank Accounts" (8/29/13) (with many links) — Aaron Elstein, "In surprise, New York's first family of tax evasion sentenced to prison", Crain's New York Business, June 26, 2019
- U.S. v. Sethi, D. N.J. Case 13-cr-10 — Docket — Criminal Information — Order Setting Conditions for Release — Judgment — Comment Jay R. Nanavati, "Indian American neurosurgeon sentenced to probation for unreported offshore bank accounts", Lexology, May 21, 2013 — Comment, Indiawest (archived), "Indian American Entrepreneur to Pay $2.5 Million Fine for Hiding Income"
- Shands v. Comm'r, 2023 U.S. Tax Ct. LEXIS 1198, 160 T.C. No. 5, 2023 WL 2399912 (IRS Whistleblower Office denied petitioner's claim of a section 7623(b) nondiscretionary award for his alleged contribution to the success of the 2011 Offshore Voluntary Disclosure Initiative (OVDI), an IRS program that encouraged taxpayers to come into compliance with tax reporting obligations by voluntarily disclosing foreign accounts and other assets. Dismissed for loack of jurisdiction.)
- Shannaham v. IRS, 672 F.3d 1142 (9th Cir. 2012) IRS documents relating to tax and FBAR civil enforcement are exempt from FOIA disclosure. William P. Shannahan acted as attorney for Steven Cheung and Linda Su Cheung who are fugitives. The court did not reach the fugitive disentitlement doctrine advanced by the IRS.
- Samuel Shapiro and Bella Shapiro v. Secretary of State, 499 F.2d 527 (D.C. Cir. 1974) (“Appellant Samuel Shapiro, a citizen of Israel, sought to enjoin his extradition by the United States, or, in the alternative, to enjoin a jeopardy assessment made against him by the Commissioner of Internal Revenue.”)
- U.S. v. Shiffman, M.D. Fla. Case No, 20-cv-01747, Docket — Complaint ("Jurisdiction is also conferred upon the Court pursuant to Fla. Stat. § 48.161 because Defendant is a resident of Florida who is concealing her whereabouts for purposes of evading service of process in this action." … "As of October 29, 2019, Defendant owes $1,136,710.48 in FBAR penalties, failure to pay penalties, and interest for calendar years 2010 and 2011.") Default judgment — 2021 U.S. Dist. LEXIS 177836, 2021 WL 4208697; 2021 U.S. Dist. LEXIS 178054, 2021 WL 4208700, 2021 U.S. Dist. LEXIS 173949, 2021 WL 4208698 — Procedural matters about service of process leading to a probable default judgment against Lillian Shiffman for FBAR penalties. Lillian Shiffman was born Nov. 6, 1937.
- U.S. v. Money Sinday and Nila Shinday, 2018 U.S. Dist. LEXIS 205372, 2018 WL 6330424 (C.D. Cal. 2018) — Docket — Complaint — Defendant's Memorandum of Points of Authorities — Gov't Opposition to Motion to Dismiss — Comment, Jack Townsend, "District Court Rejects Motion to Dismiss Based on Colliot and Wahdan Because Each Year Willful Penalty Less than $100,000 (12/10/18)" — Comment, Jeremy H. Temkin, "FBAR Penalties: Relief for Taxpayers?", N.Y.L.J., Jan. 16, 2019 (Archived copy)
- U.S. v. Shoham D. Md., Case 16-cr-265 — Docket — Criminal Information — Plea Agreement — Judgment — DOJ Press Release: "Former Maryland Resident Pleads Guilty to Conspiracy to Defraud the United States. Used Secret Foreign Accounts to Hide over $500,000 in Funds and Avoid Paying Taxes."
- U.S. v. Silva, E.D. Va., Case 10-cr-44 — Docket — Criminal Information — Plea Agreement — Judgment — DOJ Press Release, "Virginia Doctor Pleads Guilty to Conspiracy Involving Undeclared Swiss Bank Account. Dr. Andrew Silva of Sterling, Va., pleaded guilty today to conspiracy to impede the United States and to making a false statement" — Comment, Jack Townsend, "Another One Bites the Dust - Plea regarding Undeclared Swiss Bank Account" — Comment, Steven A. Meyerowitz, Lexis-Nexis, "Virginia Doctor Pleads Guilty to Conspiracy Involving Undeclared Swiss Bank Account" — Mentioned in Manafort Sentencing Memorandum
- U.S. v. Simon, 106 AFTR 2d 2010-6739 (N.D. Ind. 2010) (opinion on motion); U.S. v. Simon, 107 AFTR 2d 2011-358 (N.D. Ind. 2010) (opinion on renewed motion); U.S. v. Simon, 107 AFTR 2d 2011-1393 (N.D. Ind. 2010) (opinion; sentencing findings) — complaint
- U.S. v. Simon, 112 AFTR 2d 2013-5734, 727 F.3d 682 (7th Cir. 2013) ("A jury convicted James A. Simon of filing false income tax returns, failing to file reports of foreign bank accounts, mail fraud and financial aid fraud. … Denise committed suicide several days after federal agents executed a search warrant at the Simon family home." Memorial page – Remembering Denise – Archived copy— Comment by Jack Townsend, "Simon's Last Hurrah / Fizzle? " (8/16/13) — Earlier comment, "Sentencing Simon (Preliminary and Final) (3/18/11)"
- Simon v. Muschell, 121 A.F.T.R.2d 2018-374, 2017 WL 4021551 (N.D. Ind. 2017) ("Estate of Denise Simon and minor R.S. seek to hold the [IRS] Special Agents individually liable for violations of their constitutional rights allegedly arising from the unlawful issuance and execution of a search warrant at their home.")
- U.S. v. Simonelli, 614 F.Supp.2d 241, 102 AFTR 2d 2008-6577 (D. Conn. 1999) (Summary judgment for Government on civil FBAR penalty; non-dischargeable in bankruptcy)
- U.S. v. Singenberger, S.D. N.Y. Case 11-cr-620 — Indictment — DOJ Press Releases, "Manhattan United States Attorney announces charges against Swiss financial adviser for conspiring with over 60 U.S. taxpayers to hide more than $184 million in Swiss bank accounts" and "Kentucky Resident Pleads Guilty In Manhattan Federal Court To Hiding Hundreds Of Thousands Of Dollars In Secret Swiss Bank Accounts" ("Later, in July 2005, with the assistance of Singenberger, CANALE opened an undeclared account at Wegelin & Co. ('Wegelin'), a Swiss private bank.") — Comments, Jack Townsend, "Another Offshore Account Indictment (7/30/16)" ("Beda Singenberger who has appeared several times in blog entries, here LINK. He was a Swiss enabler through a financial advisory firm.) and "Criminal Charges for More Swiss Bank Enablers" (7/21/11) ("Beda Singenberger was indicted for one count of conspiracy. Singenberger is alleged to be a resident of Switzerland and a CPA who owned or controlled Sinco Treuhand AG through which he assisted a number of U.S. depositors in establishing and maintaining accounts to avoid U.S. tax.") and "U.S. Using a Client List of Indicted Swiss Banker/Enabler" (3/14/13) (latter referring to a Mar. 13, 2013 blog posting by Bruce Krasting, "A Different Version of the 'Dumb' Swiss Banker Story" (suggesting that the mailing of the client list was not accidental but part of a deal with the DOJ to protect the banker from prosecution in Switzerland) — Comment, Rupert Neate, "Swiss banker's leaked letter leads to $184m US tax-dodging case. 'A lot of people in the frying pan' says lawyer after banker Beda Singenberger sends client list by post to US", Guardian, Mar. 14, 2013. — Comment, Matthew D. Lee, "IRS Adds Nearly 50 New Names to OVDP Facilitator List, Effective November 15", Nov. 14, 2016 ("Since the OVDP terms were modified in 2014, the IRS has maintained a list of financial institutions and facilitators on its website that trigger the higher [50% instead of 27½%] penalty.")
- U.S. v. Sinyavskiy, 2022 U.S. Dist. LEXIS 180103, 2022 WL 4662789 (E.D. N.Y.) Default judgment in favor of the IRS for $85,559.18 in FBAR penalties and interest.
- Ian D. Smith v. Comm'r, 148 T.C. No. 21, 148 T.C. 449 (2017) (rewards to informers and whistleblowers)
- U.S. v. Solomon, 570 F.Supp.3d 1195 (S.D. Fla. 2021) ("pursuant to the statutory duty imposed on U.S. citizens in Section 5314 and the implementing regulations, the plain meaning of the term 'violation' in 31 U.S.C. § 5321(a)(5)(A) is the failure to report each foreign financial account on the FBAR form—not simply the failure to file the FBAR form itself. Solomon committed twenty such 'violations' in this case, thus authorizing the government’s imposition of $200,000 in total penalties") Judgment inconsistent with 2023 judgment of the Supreme Court in Bittner v. U.S.
- In re Special February 2011-1 Grand Jury Subpoena Dated September 12, 2011, 691 F.3d 903 (7th Cir. 2012) — Comment, Jack Townsend, "Seventh Circuit Compels Production of Offshore Bank Under the Required Records Doctrine" (8/27/12)
- U.S. v. Sperling, C.D. Cal. Case 13-cr-108 — Docket — Case Summary — Criminal Information — Plea Agreement — Judgment — Comment, Jack Townsend, "New Plea Agreement Involving Israeli Banks" (2/15/13)
- U.S. v. Srivastava, 98 AFTR 2d 2006-5932, 444 F. Supp. 2d 385 (D.C. Md. 2006) (suppression of evidence)
- SEC v. Stanford Intern. Bank, Ltd., In re: Tax Liabilities of John Does, 776 F. Supp. 2d 323 (N.D. Tex. 2011), Case 09-cv-298 — Docket — First Amended Complaint — Decl. of Daniel Reeves — Settlement Agreement between Receiver and insurers — DOJ Press Release, "Justice Department Asks Court to Authorize Service of a John Doe Summons Seeking the Identities of U.S. Clients of R. Allen Stanford’s Investment Companies" (Dec. 2, 2009) — SEC Press Release, June 19, 2009
Janve v. Alguire, N.D. Tex. Case 09-cv-724 — Opinion and Order (action to recover $760 million paid to Stanford investors in alleged Ponzi scheme; there was much litigation, many appeals) — Appeal, 5th Cir. Case 10-10617 — Judgment (aff'd and remanded to compel arbitration) — 5th Cir. Case 14-cv-10857 — Judgment, Jan. 31, 2017 (Receiver seeks to retrieve funds paid to Stanford employees under UFTA; this appeal denies employees' demand for arbitration)
- U.S. v. Streeruwitz, 2021 U.S. Dist. LEXIS 252341, 2022 WL 256344 Default judgment in favor of IRS for $74,598.62, including a late-payment penalty of $8,227.39, plus interest.
- U.S. v. Sturman, 706 F. 3d 846 (C.A. 7th 2013); U.S. v. Sturman, 951 F.2d 1466 (6th Cir. 1991) (Foreign corporations, concealed Swiss bank accounts)
- Taylor Lohmeyer Law Firm Pllc v. U.S., W.D. Tex. Case 18-cv-1161 (2019) — Comment, Jack Townsend, "District Court Rejects Argument that JDS Seeking Law Firm Client Identities Violates Attorney-Client Privilege" (5/25/19) (John Doe summons to law firm concerning offshore structures, trusts and accounts)
- U.S. v. Thiam, S.D. N.Y., Case 16-mag-7960 — Sealed Complaint — Brief for Gov't — DOJ Document file — Judgment
- U.S. v. Thomann, S.D. N.Y., Case 12-cr-212 — Indictment
- Thomas v. UBS AG, N.D. Ill., Case 11-cv-4798 (June 21, 2012) — 2012 U.S. Dist. LEXIS 87224, 2012 WL 2396866 (N.D. Ill. 2012) — Aff'd 706 F.3d 846 (7th Cir., 2013) — Complaint — Transcript — Comment, Jack Townsend, "Class Action Suit by U.S. Depositors in UBS" (8/4/11)
Appeal, 706 F.3d 846 (7th Cir. 2013) — Docket — Opinion — Comment, Pavlack, Hoosier Litigation Blog, "Lessons from Thomas v. UBS AG (7th Cir. 2013): Multistate Class Actions and Applicable Law in Federal Diversity" — Comment, Jonathan Stempel, "UBS Wins End To 'Travesty' Of Lawsuit Over Tax Evasion", Business Insider, Feb. 7, 2013 (Archived copy) ("7th Circuit said UBS' obligations under the 2001 IRS program did not run to the plaintiffs, and that UBS had no general duty to prevent them from breaking the law.")
- Thompson v. U.S., 102 AFTR 2d 2008-6130 (S.D. Tex. 2008) (Third party summons on taxpayer's accountant)
- U.S. v. Tilga, 108 AFTR 2d 2011-7129 (824 F. Supp. 2d 1295), (D.C. N.M. 2011) (sentencing issues in tax evasion prosecution)
- Topsnik v. Comm'r, 146 T.C. 1 (2016) (abandonment of lawful permanent resident status creating covered expatriate status) — Comments: Martin J. McMahon Jr. and Bruce A. McGovern — John Richardson — Analyzed, 96 Prac. Tax Strategies 133 (2023)
- Topsnik v. Comm'r, 12 F.Supp.3d 1 (D. D.C. 2013) (Jeopardy assessment)
- U.S. v. Toth, 2017 WL 1703936; 2018 U.S. Dist. LEXIS 176466, 119 AFTR 2d 2017-1688 (D. Mass. 2017) (FBAR penalty of $2,173,703); Affirmed by 33 F.4th 1 (1st Cir. 2022), Cert. denied 143 S.Ct. 552 (2023)
- U.S. v. Troost, N.D. Ill, Case 13-cr-185 — Docket — Criminal Information — Plea agreement — Judgment — DOJ Press Release, "Skokie Businessman Sentenced To Federal Prison For Evading $1 Million In Taxes Related To Secret Offshore Swiss Bank Account" — Comment, Jack Townsend, "UBS Client, 78 Years Old, Sentenced to One Year and One Day" (7/16/13) — Comment, Pam DeFiglio, "Skokie Man Gets Prison Sentence For Evading $1 Million in Taxes", Skokie Patch, Jul. 16, 2013
- U.S. v. UBS AG, S.D. Fla., Case 09-cr-60033 — Docket — Criminal Information — Brager law firm Blog, "Offshore Bank Account Problems", City-Data, Jan. 24, 2012 (includes list of defendants in IRS prosecutions) — DOJ Press Release, "Justice Department Asks Court to Serve IRS Summons for UBS Swiss Bank Account Records", June 30, 2008
- Taveras v. UBS et al., 513 Fed.Appx. 19 (2nd Cir. 2013); 708 F.3d 436 (2013)
- U.S. v. Under Seal, 112 AFTR 2d 2013-7316, 737 F.3d 330 (4th Cir. 2013) (civil contempt order over records of foreign bank account: "Does argue that individuals are unlikely to keep account records for the five years required under 31 C.F.R. § 1010.420, given the three-year statute of limitations for civil tax adjustments, and because foreign banks are notorious for failing to provide customers with records. This argument fails, however, given the clear language in § 1010.420 that requires the retention of the account information that has been subpoenaed.")
- U.S. v. Upham, S.D. N.Y., Case 10-cr-326 — Docket — Indictment — Judgment — DOJ Press Release, "Manhattan U.S. Attorney announces charges against family member of former UBS client for conspiring to hide over $11 million in Swiss bank accounts"
- U.S. v. Van Katwyk, 2017 U.S. Dist. LEXIS 207135, 2017 WL 6021420, 120 AFTR 2d 2017-6380 (C.D. Cal. 2017) (default judgment for FBAR penalties against lawful permanent resident)
- U.S. v. Vogliano, S.D. N.Y., Case 10-cr-327 — Docket — Sealed Indictment — Judgment — Satisfaction of Judgment — DOJ Press Release, "Former UBS Client Pleads Guilty in Manhattan Federal Court to Hiding $4.9 Million in Swiss Bank Accounts" — Comment, Sanford Millar, "Unfiled FBAR, Watch out for State Tax Attacks", JD Supra, Dec 28, 2010 ("[As] part of his plea agreement, Ernest Vogliano had to plead to state charges and agree to file amended state as well as federal income tax returns and pay the tax, interest and penalties.") — Comment, Reuters, "Ex-UBS client, 80, sentenced in tax evasion case", Apr. 22, 2011 — IRS, Offshore Tax-Avoidance and IRS Compliance Efforts, ("April 21, 2011: Ernest Vogliano, of Manhattan, N.Y., was sentenced to two years probation and ordered to pay a $940,000 civil penalty. He pleaded guilty on Dec. 22, 2010, to filing false tax returns and conspiring to defraud the Internal Revenue Service by hiding $4.9 million in an offshore bank account with UBS, AG.")
- U.S. v. Wahdan, 325 F.Supp.3d 1136 (D. Colo. July 18, 2018) (Foreign trust, FBAR, tax fraud; IRS tax claim in bankruptcy) "Second Court Bars IRS from Assessing FBAR “Willful” Penalty in Excess of $100,000" — Comment, Virginia La Torre Jeker, "'FBAR Willful' Penalty: New Case, Taxpayer 'Charged With Knowledge'" — Comment, Stephen Dunn, "Recent Cases Highlight FBAR Penalty Trends", Newsmax Finance, July 26, 2018 ("The Wahdans won a motion under 31 CFR § 1010.820(g) limiting their liability for penalties to $100,000 per account per defendant per year.") — But see: Comment, Jack Townsend, "District Court Rejects Motion to Dismiss Based on Colliot and Wahdan Because Each Year Willful Penalty Less than $100,000 (12/10/18)"
- U.S. v. Wajsfelner, S.D. N.Y., 12-cr-641, Mar. 8, 2013 — Docket — Criminal Information — Amended Judgment — Def't. Sentencing Memo — Gov’t Sentencing Memo — Comment, Patricia Hurtado and David Voreacos, "Ex-Credit Suisse Client, 83, Admits Hiding $5.7 Million", Bloomberg Business, Aug. 21, 2012 — Comments, Jack Townsend, "U.S. Using a Client List of Indicted Swiss Banker/Enabler (3/14/13)" and "Credit Suisse / Wegelin Client Pleads Guilty to FBAR Violation in SDNY" (8/21/12) — DOJ Press Release, "Massachusetts Man Sentenced In Manhattan Federal Court For Hiding Millions From Irs In Swiss Bank Accounts" — (3 months’ home confinement; $2.8 million civil penalty; $400K taxes; $20K fine)
- U.S. v. Waknine, C.D. Cal., 18-cr-180 — Judgment — DOJ Press Release, "Huntington Beach Man Pleads Guilty to Filing a False Tax Return That Failed to Report Over $2 Million Held in Offshore Israeli Bank Account"
- U.S. v. Walder, Adami, Meier, Schaerer, Agustoni, Bergantino, Bchmann and Dörig, E.D. Va. Case 11-cr-95 — Superseding Indictment — Comment, Jack Townsend, "Criminal Charges for More Swiss Bank Enablers" (7/21/11) ("Criminal Charges surfaced today for more offshore bank account enablers. The first involves Credit Suisse and the second involves UBS.") — DOJ Press Release, "Swiss International Bank's Former Head of North America Offshore Banking, Others Charged with Conspiracy. Superseding Indictment Alleges Defendants Helped U.S. Taxpayers Hide Assets in Secret Accounts"
- U.S. v. Warner, 792 F.3d 847, 116 AFTR 2d 2015-5175 (7th Cir. 2015) (Court version) (Beanie Babies creator sentenced to two years' probation with community service, plus a $100,000 fine and costs) — Comment, Janet Novack, "Appeals Court Decides Beanie Babies Billionaire Tax Evader Ty Warner Won't Go To Jail", Forbes, July 11, 2015 — Comment, Jack Townsend, "Seventh Circuit Affirms No Incarceration Sentence for Ty Warner" (7/10/15; 7/14/15)
- U.S. v. Warner, N.D. Ill. Case 13-cr-731 — Docket — Criminal Information — Gov't Sentencing Memo — Def't Sentencing Memo ("Because Ty was neither under audit nor on notice of any investigation, he fully expected to be admitted to the OVDI. However, unbeknownst to Ty and his counsel, Ty’s name was on a list of 285 names provided by UBS in secret to the Justice Department on February 18, 2009 as part of UBS’s efforts to avoid criminal prosecution in the United States. The individuals on that list would apparently be forever excluded from making a voluntary disclosure because the IRS has taken the position that they failed the 'timeliness' test.") — Judgment — Comment, Jack Townsend, "Comments on the Warner Sentencing Oral Argument" (9/22/14)
- U.S. v. Weatherly, 2020 WL 2543091, 2020 U.S. Dist. LEXIS 87810 (M.D. Fla.) (fraudulent transfer of $1 million to avoid payment of FBAR penalties)
- U.S. v. Wegelin & Co., S.D. N.Y., Case 12-cr-02 — Sentencing Memorandum
- U.S. v. Raoul Weil, S.D. Fla. 08-cr-60322 — Docket — Indictment —Jury Verdict — Judgment of Acquittal —Instructions to Jury — DOJ Press Release, "Swiss Bank Executive Charged with Aiding U.S. Taxpayers Evade Income Tax. Approximately $20 Billion in U.S. Assets Allegedly Concealed from IRS" (Nov. 12, 2008) —Comment, The Guardian, "Swiss banker Raoul Weil acquitted in tax evasion trial in Florida", Nov. 3, 2014 — Comment, Robert W. Wood, "Top UBS Banker Not Guilty Of Tax Evasion, Big Blow To Offshore Crackdown", Nov, 3, 2014 — Comment, Federal Tax and Form Crimes, "Big defeat and blow for DOJ In The Raoul Weil Case!", Nov. 3, 2014 — Comment, NewsMax, "Ex-UBS Banker's Acquittal Shows US Tax Prosecution Difficulty", Nov. 4, 2014 (also in Accounting Today, Nov. 4, 2014, p. 2) Comments, Jack Townsend, "Pretrial Skirmishing in Weil - the Coplan Issue of Improper Expansion of the Defraud / Klein Conspiracy" (10/21/14) and "Raoul Weil Pleads Not Guilty: Thoughts and Speculations" (1/8/14) and "Ex Top UBS Banker Arrested; Likely to be Extradited" (10/21/13) and "Raoul Weil Trial Begins Next Week; Some Items for the Run-Up" (10/9/14) and "Prosecuting Corporate Employees and Officers, with Focus on Swiss Banks" (1/15/16) and "Raoul Weil Found Not Guilty" (11/3/14; 11/6/14) and "Switzerland as Club Fed for Swiss Enablers of U.S. Tax Crimes" (10/24/13)
- U.S. v. Werdiger, S.D. N.Y. Case 10-cr-325 — Docket — Indictment — Comment, Nat'l Jeweler Network, "Werdiger Sentenced to One Year in Prison for Tax Evasion" — DOJ Press Release, "Diamond merchant sentenced in Manhattan Federal Court to one year and one day in prison for conspiring to hide $7.1 million in Swiss bank accounts and evade nearly $400,000 in taxes"
- U.S. v. J. Bryan Williams, 110 AFTR 2d 2012-5298, 489 Fed. App'x. 655 (4th Cir. 2012) — Court version — Willfulness issue. ("Following a bench trial, the district court entered judgment in favor of Williams. The Government now appeals. Because we conclude that the district court clearly erred in finding that the Government failed to prove that Williams willfully violated § 5314, we reverse.") — Comment, Robert W. Wood, "FBAR Penalties Just Got Even Worse", Forbes, Jul. 22, 2012
U.S. v. J. Bryan Williams, 114 AFTR 2d 2014-5036 (E.D. Va. 2014) (statutory maximum FBAR penalty affirmed, reversing Memorandum Opinion of Sept. 1, 2010, making redundant earlier commentary: Phil Hodgen, "Taxpayer beats FBAR penalty in court – United States v. Williams", Sept. 13, 2010) — Steven Ferraro, "Effect of United States v. Williams on the Offshore Voluntary Disclosure Program", 10 Brigham Young Univ. Int'l L. and Mgt. Rev. 27 (2014)
U.S. v. J. Bryan Williams, Amended judgment after guilty plea in tax evasion case, S2-03-cr-00406-001 (HB) (S.D. N.Y. 2003) Indictment (kickback to Mobil Oil executive from Kazakh project)
U.S. v. J. Bryan Williams, 106 AFTR 2d 2010-5158 (E.D. Va. 2010) (denial of IRS motion for summary judgment)
U.S. v. J. Bryan Williams, 106 AFTR 2d 2010-6150 (E.D. Va. 2010) (willfulness issue)
- Joseph B. Williams III v. Comm'r, 131 T.C. No. 6, (2008) ("Tax Court lacks jurisdiction to redetermine P’s income tax liability for 2001, liability for unassessed interest, and liability for the FBAR penalty.") — Comment, Kyle Niewoehner, "Feigning Willfulness: How Williams and McBride Extend the Foreign Bank Accounts Disclosure Willfulness Requirement and Why They Should Not Be Followed", 68 Tax Lawyer 251 (2014)
Joseph B. Williams III v. Comm'r, T.C. Memo 2009-81 (collateral estoppel after tax evasion conviction)
Joseph B. Williams III v. Comm'r, T.C. Memo 2011-89 — Comment, Jack Townsend, "The Williams Offshore Account Saga Continues — You Win Some, You Lose Some" (4/28/11)
Joseph B. Williams III v. Comm'r, 498 Fed.App'x. 284 (4th Cir. 2012)
- U.S. v. Womack, 2015 U.S. Dist. LEXIS 167489 (W.D. Mo. 2015) ("failed to report their interest in, and income from, the accounts, and failed to file Reports of Foreign Bank and Financial Accounts ("FBARs") disclosing their authority over the accounts")
- U.S. v. One Hundred And Twenty Thousand Eight Hundred And Fifty Six Dollars In United States Currency More Or Less (Bernard Wray, Claimant), 394 F.Supp.2d 687 (D.V.I. 2005) (Civil forfeiture of undeclared imported currency) (Cf. U.S. v. Bajakajian, 524 U.S. 321 (1998), and see Scott E. Gant, Bajakajian and Excessive Fines Claims Against the United States, 8 Fed. Cir. Bar J. 39 (1999).
- In re Wyly, 552 B.R. 338, 117 A.F.T.R.2d 2016-1508 (Bankr. N.D. Tex. 2016) (FBAR, foreign trust and controlled foreign corporation) penalties; debtor acted with fraudulent intent in underpaying his income taxes, and thus was liable for fraudulent underpayment penalties; foreign trust scheme for asset protection and tax deferral. "But, to accept the Wylys' explanation requires the Court to be satisfied that it is appropriate for extraordinarily wealthy individuals to hire middlemen to do their bidding in order to insulate themselves from wrong-doing")
- U.S. v. Kevin Scott Wynn, S.D. Tex. Case 20-mj-1534, Docket — Extradited (or deported) from Mexico — Defendant committed to the Arizona District — DOJ Press Release, Apr. 2, 2021, "Tax Fugitive Sentenced and Fined"
- U.S. v. Xiao, S.D. Ill. Case 21-cr-40039 — Docket — DOJ Press Release — 2022 WL 4250585, 2022 U.S. Dist. LEXIS 167058 (S.D. Ill.) ("the jury acquitted Xiao of making a false statement (Count 3) but found him guilty of filing false tax returns and failing to file a FBAR … The jury heard testimony from Lisa Skelly, who works for TurboTax … Skelly testified that Xiao would have seen at least one screen in TurboTax expressly asking him if he had foreign bank accounts.") Comment, APA Justice (2022)
- U.S. v. Yermian, 2016 U.S. Dist. LEXIS 49992; 117 A.F.T.R.2d (RIA) 1064 (C.D. Cal. 2016) (Failure to file FBAR "that Plaintiff, United States of America, shall have and recover judgment against Defendant Shoaleh Yermian in the amount of $32,142.79.")
- U.S. v. Zabczuk, S.D. Fla. Case 10-cr-60112 — Docket — Report Commencing Crim. Action — Criminal Information — DOJ Press Release, "Former UBS Client Pleads Guilty to Hiding Assets in Secret Offshore Bank Accounts. Texan Moved Undeclared Assets from the Bahamas to Switzerland to China" — IRS, Offshore Tax-Avoidance and IRS Compliance Efforts, ("April 13, 2010: Paul Zabczuk, of The Woodlands, Texas, pleaded guilty to filing a false tax return wherein he failed to report his interest in or signature authority over financial accounts at UBS AG. Zabczuk was sentenced on July 27, 2010, to three years of supervised release with one year served in home detention and 150 hours community service. In addition, Zabczuk was ordered to file accurate tax returns and pay all taxes, interest and penalties due and owing to the IRS.") — Comment, Scott Engle, "Woodlands Resident Guilty of Filing False Tax Return," Montgomery County Police Reporter, Apr. 14, 2010 (Archived copy)
- U.S. v. Zaltsberg, D. N.J. Case 10-cr-437 — Docket — Criminal Information — Plea Agreement — Judgment ("The defendant is hereby placed on probation for a term of 4 years on count 1 of the information") — DOJ Press Release, "New Jersey UBS Client Pleads Guilty to Failing to Report More Than $2 Million in Swiss Bank Account"
- U.S. v. Zavieh, S.D. Fla. Case 11-cr-60287 — Indictment — Transferred to N.D. Cal. on 3/2/2012 — DOJ Press Release, "Client of UBS and Swiss Cantonal Bank Indicted for Conspiracy to Defraud the IRS. Convicted UBS Banker Renzo Gadola Helped UBS Client to Move His Secret Assets from UBS to a Swiss Cantonal Bank." — Comment, Jack Townsend, "Another UBS Customer Indicted" (12/8/11) — Amir Zavieh died at the age of 78 on Feb. 20, 2014
- U.S. v. Estate of Amir Zavieh, a/k/a Allen Zavieh, N.D. Cal., Case 17-cv-03286 — Docket — Complaint, with attachments — Order denying ex p. motion to appoint personal representative — Stipulation of dismissal
- U.S. v. Wolin (Estate of Leo Ziegel), 489 F.Supp.3d 21 (E.D.N.Y. 2020) UBS client. FBAR liability that arose before taxpayer’s death survived his death, and FBAR penalty was enforceable against his estate; transfer on death outside of probate or succession as contingent beneficiaries constituted fraudulent transfer under N.Y.S. law.
- Zuhovitsky v. UBS, S.D. N.Y. Case No.2021-cv-11124, Docket (from Court Listener, with downloadable files)
- U.S. v. Zwerner, 2014 WL 11878430 (S.D. Fla. 2014) — Complaint — Jury verdict — Notice of Settlement — Comment, Charles Rettig, "Zwerner: Jury Determines 150% FBAR Penalty Applies — What Next?", Forbes, May 29, 2014
- See additional 2014 and older cases from RIA at SCRIBD — 108 cases from Westlaw from about 2016 through March 2019, containing term "FBAR".
- Definition: distinguishing between "indictment: and information", Harlan Protass, "Madoff’s 'Information' Why didn’t the Ponzi schemer get indicted instead?", Slate, Mar. 11, 2009
12. Whistleblower Cases
- Awad v. Comm'r, T.C. Memo. 2017-108 (June 8, 2017)
- UBS Birkenfeld Whistleblower Case: LexisNexis — DOJ Press Releases #1 #2 — Comment, Jack Townsend, "Birkenfeld Loses Suit Against UBS in New York Supreme Court" (1/22/18) (linking to cases) — Daphne Caruana Galizia, "UBS whistleblower Bradley Birkenfeld given Malta residency despite criminal record" (Mar. 2017) — And see U.S. v. Birkenfeld, above.
- Rudolph Elmer (links to documents relating to Swiss prosecution) — Comment, Tax Justice Network
- Ian D. Smith v. Comm'r, 148 T.C. Bo. 21 (June 7, 2017)
- Whistleblower 22231-12W v. Comm'r, T.C. Memo. 2014-157 (Aug. 4, 2014) ("Because we have concluded that the Office did not make a 'determination' within the meaning of section 7623(b)(4) sufficient to confer jurisdiction on this Court, we need not decide whether FBAR payments are 'additional amounts' for purposes of ascertaining whether the monetary threshold in section 7623(b)(5) has been met, or whether that question is a jurisdictional one.")
- Whistleblower 22716-13W v. Comm'r, 146 T.C. No. 6, 146 T.C. 84 — Comment, Peter J. Reilly, "IRS Bounty Hunters Should Not Waste Time On FBAR Penalties", Forbes, Mar. 22, 2016
- Whistleblower 22716-13W v. Comm'r, 147 T.C. No. 4 ("The criminal fine and civil forfeitures are collected proceeds for purposes of an award under I.R.C. sec. 7623(b).")
- Carmina Franchesca S. Del Mundo, "How Countries Seek to Strengthen Anti-Money Laundering Laws in Response to the Panama Papers, and the Ethical Implications of Incentivizing Whistleblowers", 40 N.W. J. Int. L. & Bus. 87 (2019)
- Niels Johannesen, "The Deterrence Effect of Whistleblowing", 64 J. L. & Econ. 821 (2021)
13. Origins of FATCA: Banks Alleged to be Involved in Tax Evasion; Substantial Penalties
- The BCCI Affair: A Report to the Committee on Foreign Relations, Senator John Kerry, Senator Hank Brown (Dec. 1992)
- House of Commons, Inquiry into the Supervision of the Bank of Credit and Commerce International (Oct. 1992)
- "BCCI: Dead and Buried", The Economist, April 13, 2000
- "A Brief History of the United States Liquidation of Bank of Credit and Commerce International ('BCCI') July 5, 1991 through July 31, 2012"
- Final judgment, United States v. BCCI Holdings (Luxembourg) S.A., Crim. Action No. 91-0655 (JHG) (D. D.C. 1999)
- "Files close on BCCI banking scandal" Guardian, May 17, 2012
- "Anna's Archives": BCCI references
US Tax Program for Swiss Banks ("The Program for Non-Prosecution Agreements or Non-Target letters for Swiss Banks intends to settle a dispute between Swiss Banks and the United States of America linked to tax evasion of US Related Accounts held in Swiss Banks.") — Dept. of Justice Timeline — Jack Townsend, "General Links" (see right-hand column) — But see: Finews, Dec. 30, 2016, "U.S. Ends 4-Year Swiss Hunt With Paltry Reward". ($1.36 bn total from 80 banks) — Swissinfo, Aug. 17, 2017, "Swiss asset manager settles US tax evasion charges" ("A handful of other banks, including Pictet and the Basel and Zurich cantonal banks, could still be subject to criminal convictions and heavy fines.") On Bradley C. Birkenfeld, see his memoir, Lucifer’s Banker Uncensored: The Untold Story of How I Destroyed Swiss Bank Secrecy (2020), and Jack Townsend comment, "The Birkenfeld Prosecution, Conviction and Sentence" (11/13/17).
Frank Hirth Tax Conference, London, March 26-27, 2019, Lecture slides, Individual Tax - FBAR Statistics. Increased FBAR penalty cases:
- 2014: 13 cases
- 2015: 22 cases
- 2016: 30 cases
- 2017: 66 cases
- 2018: 55 cases [1 January to 9 September 2018])
FBAR filing by year: statistics collected by AARO
"Fines for Misconduct in the Banking Sector — What is the Situation in the EU?", Economic and Monetary Affairs Committee, European Parliament (March 2017).
Gateley Plc, "Facilitation of tax evasion – considerations for banks" (Dec. 2017) ("a foreign tax evasion offence relating to conduct which is an offence under the law of a foreign country, which relates to a breach of duty regarding a tax imposed under that foreign law and which would be regarded as a UK tax evasion offence if the offence were committed in the UK.").
"European banks face ‘disproportional’ US fines", Financial News, Sept. 11, 2017 ("European institutions account for almost 40% of all the fines paid to US regulators for failing to police economic crime") Likewise: Chris Skinner's Blog, "American Hypocrisy Over Bank Fines Shows Parochialism at Large", May 21, 2014 ("The banks the US Authorities seek to punish are mainly the large European banks whilst, when it comes to its own, it is far more lenient.") Settlements with Treasury have been deducted by banks from their own taxable income for U.S. tax purposes: GAO report 05-747, "Tax Administration: Systematic Information Sharing Would Help IRS Determine the Deductibility of Civil Settlement Payments" (2005), Newsweek, Oct. 27, 2014.
"Swiss banks suddenly preach transparency in U.S. tax evasion endgame", Financial Post, April 2015 ("Faced with the threat of penalties that could bankrupt some of them, almost 100 of the country’s banks are calling U.S. clients to get them to disclose hidden offshore accounts"). Compare penalties against foreign banks for violation of money laundering and trade embargo laws: The Economist, Dec. 15, 2012, "HSBC and Standard Chartered: Too big to jail".
- Freedom of Information Act 2000 (FOIA), HMRC Decision notice 28 March 2017
- Freedom of Information Act 2000 (FOIA), HMRC Decision notice 1 March 2019
- IRS document: UIL No. Report of Foreign Bank and Financial Accounts (FBAR) Job Aid and Counsel Review of Penalty Cases
- Brian D. Burton, "FATCA 2016 Update: The Panama Papers and Beyond", Taxes the Tax Magazine, July 2016
- Mariano-Florentino Cuéllar, "The Tenuous Relationship between the Fight against Money Laundering and the Disruption of Criminal Finance", 93 J. Crim. L. and Criminology 311 (2003)
- Heather M. Field, "Offshoring Tax Ethics: The Panama Papers, Seeking Refuge from Tax, and Tax Lawyer Referrals", 62 St. Louis Univ. L.J. 35 (2017)
- Alan S. Lederman, Bobbe Hirsh, "The American Assault on Tax Havens—Status Report", 44 Int. Layer 1141 (2010)
- Shu-Yi Oei, "The Offshore Tax Enforcement Dragnet", 67 Emory L.J. 655 (2018)
- Anand Sithian, “'But the Americans Made Me Do It!': How United States v. UBS Makes the Case for Executive Exhaustion", 25 Emory Int. L. Rev. 681 (2011)
- Bruce Zagaris, "Why the U.S. and the Worldwide Tax Systems Have Run Amok" (Mar. 2019)
- Online poker, money transmitters
- Jack Townsend, "Enablers and Taxpayer Related to Panama Papers Disclosures Indicted" (11/5/18)
- "Dirk Brauer, an investment manager for Mossfon Asset Management, S.A., an asset management company closely affiliated with Mossack Fonseca, who was arrested in Paris, France, on November 15, 2018;
- "Ramses Owens (aka Ramses Owens Saad), a Panamanian attorney who worked for Mossack Fonseca and who remains at large.
- "Richard Gaffey, a U.S.-based accountant, who was arrested in Massachusetts, this morning.
- "Harald Joachim von der Goltz (also identified as Client-2 in the indictment), a former U.S. resident and taxpayer, who was arrested in London, United Kingdom, on December 3, 2018"
- DOJ Press Release, Dec. 4, 2018, "Four Defendants Charged In Panama Papers Investigation" (Ramses Owens, Dirk Brauer, Richard Gaffey, Harald Joachim von der Goltz, all related to the Mossack Fonseca law firm) and Indictment (S.D. N.Y. Case 18-cr-693)
14. Expatriation, Conflict of Status, "Covered Expatriates", Estates and Trusts
For covered expatriates who have heirs who are U.S. Persons the 40% tax imposed by I.R.C. § 2801 on a U.S. Person-recipient of a legacy represents a real threat although it is subject to credit for foreign death taxes paid. (BNA comment on Proposed Reg. 112997-10 — NYC Bar comment.) In a few older cases known to this writer, an estate (or administrator of a succession) has been able to bargain, perhaps through influential Wall Street law firms and Big-Four accounting firms, with the IRS for partial remission of taxes, penalties and interest. That tactic may be less likely to be successful today in a FATCA world but a discretionary trust barring payment of any funds that might be seized, or lead to seizure of equivalent assets, has been put forth as an alternative for jurisdictions that recognize trusts or conditional legacies. The issue of personal liability of a trustee for foreign taxes is largely untested and may depend upon the terms of a will or trust. Bequests to foreign charities are outside the scope of IRS collections. See 26 U.S.C. § 877A(g) for exceptions to covered status in the case of certain dual nationals. See Peter Spero, Asset Protection: Legal Planning, Strategies and Forms (loose-leaf, updated; found in many law libraries and on Westlaw).
- Covered expatriate subject to U.S. tax, 96 Prac. Tax Strategies 133
- "Expatriation and compliance: what you need to know now", reprinted from Tax Notes Int'l, May 21, 2018
- Phil Hodgen, "Chapter 4 – Are You A Covered Expatriate?" (Oct. 26, 2013)
- Debra Rudd, "Exit Tax Book Chapter 5: Are You a Covered Expatriate?" (May 13, 2019)
- Gary A. Forster, J. Brian Page, "Expatriation From the United States: The Inheritance Tax Under I.R.C. §2801", 96 Fla. Bar J. 34 (2022)
Note the special status of diplomatic and international organization families: As a practical matter, if citizenship is acquired at birth expatriation may be facilitated: Boris Johnson (see Robert W. Wood, "Boris Johnson’s Big Win? He Beat IRS", Forbes, July 10, 2022; David A. Graham, "London Mayor Boris Johnson Hates the IRS, Too" ("he could also be subject to an exit tax"), The Atlantic, Feb. 17, 2015) and David Alward, mentioned above; also Thai King Bhumibol Adulyadej (Another link) whose status arose from his father's sovereign immunity. Diplomats assigned to consulates have functional and not personal immunity: See Vienna Convention on Consular Relations, Article 43, "Immunity from jurisdiction". Art. 49 exempts consular officers and their families from "all dues and taxes, personal or real, national, regional or municipal", with exceptions. And see the discussion of the diplomatic staff White List above. Prince Albert of Monaco renounced his U.S. citizenship long ago, before the U.S. imposed quasi-exit tax on certain expatriates; The status of children born to accredited diplomats (where the accompanying spouse is not a U.S. citizen) yields an administrative anomaly: such dependents or former dependents may apply for permanent residence status. The State Department will not accredit a U.S. citizen as a foreign diplomat, but a number of foreign diplomats have U.S.-citizen spouses: those spouses enjoy no immunity beyond the courtesies needed to avoid international embarrassment in an appropriate case. As noted above a U.S.-born child of a diplomat with an alien spouse has the option of claiming Green Card status at age 18. Many of these anomalies carry with them income tax and foreign asset reporting complications. At the time of writing, Arturs Krišjānis Kariņš, born in Wilmington, Delaware, is prime minister of Latvia. Nothing has been made public of his tax status.
- Compare the Consul General Prabhu Dayal case: "NY maid claims Indian consul exploited her: lawsuit", Reuters, June 21, 2011 (Archived copy) and see court documents from PACER and RECAP: complaint and order of closure upon settlement. (Compare: Manuel Roig-Franzia, "The Fugitive Heiress Next Door", Washington Post, June 7, 2023)
- Kasner Symposium October 25, 2014: "An Introduction to International Estate Planning" (Archived copy)
- John Richardson, "Part 11 – S. 2801 of the Internal Revenue Code is NOT a S. 877A 'Exit Tax', but a punishment for the 'sins of the father'" (2015)
- Phil Hodgen, "How to Handle Inheritances from an Expatriate" (2017)
- Max Reed, "Tax Consequences of Renouncing U.S. Citizenship" (2016) (Archived copy) ("This may lead to double taxation, as the tax will be paid in Canada later on when the assets are actually sold without a credit for the U.S. taxes already paid." This is a problem already known in cases of temporal or characterization conflict, only sometimes relieved by tax treaty.)
- And see Francis Lorenzo case, above.
Denationalization in other countries:
- Patti Tamara Lenard, "Democratic Citizenship and Denationalization", 112 Am. Pol. Sci. Rev. 99 (2018) (Archived full text) (Correction)
- Guidelines: "Involuntary Loss of European Citizenship" (ILEC Guidelines 2015) (Archived copy)
- Gerard-René de Groot, Maarten Peter Vink, "Best Practices in Involuntary Loss of Nationality in the EU", CEPS Paper in Liberty and Security in Europe No. 73 (Nov. 2014)
- Gerard René de Groot, Maarten Vink, Iseult Honohan, EUDO Citizenship Policy Brief No. 3, "Loss of Citizenship" (2010) (Archived copy)
- Rainer Bauböck, Vesco Paskalev, "Citizenship Deprivation A Normative Analysis" CEPS Paper in Liberty and Security in Europe No. 82 (March 2015) (Archived copy)
- Diane F. Orentlicher, "Citizenship and National Identity", in David Wippman, ed., International Law and Ethnic Conflict (1999)
See Convention between Canada and the United States of America with Respect to Taxes on Income and on Capital Article XXIX B, "Taxes Imposed by Reason of Death" (reciprocal credit for U.S. estate tax and Canadian capital gains tax on deemed disposition at death). The 40% duty ("the highest rate of tax specified … in section 2001(c)") imposed upon the recipient of a gift or legacy from a covered expatriate appears to be another Congressional override, or partial override, of tax treaties. (On legislative override see Carla Di Pietro, "Tax Treaty Override and the Need for Coordination between Legal Systems: Safeguarding the Effectiveness of International Law", World Tax J., Feb. 2015, p. 73; Carla Di Pietro, Tax Treaty Override (2012); Nicholas Stephanopoulos, "The Case for the Legislative Override", 10 UCLA J. Int. L and Foreign Affairs 250 (2005).) In the case of a covered expatriate domiciled or deemed domiciled in the U.K., covered expatriate status would result in 40% U.K. "inheritance tax" applied to the estate above the exemption amount (at the time of writing, £325,000) and a 40% U.S. tax imposed on any legatee who is a U.S. Person, even if that person is also domiciled and resident in the U.K., with credit for foreign tax paid.
To the extent that non-U.S. accountants, estate lawyers and civil-law notaries consider it their ethical duty to require clients to satisfy foreign as well as domestic tax obligations (U.K. Code of Professional Ethics and see above "Facilitation of tax evasion – considerations for banks" (Dec. 2017)), even if there are no U.S.-sited assets and no treaty collection provision, the difficulty for the IRS in exercising jurisdiction abroad may, as it has with FATCA, be overcome by "privatization".
However, the application of I.R. Reg. 11297-10 ("Notice of Proposed Rulemaking … Regarding the Imposition of Tax on Certain Gifts and Bequests from Covered Expatriates") leaves open some questions. It sets out detailed definitions regarding liability for the tax and the treatment of foreign and domestic trusts, charitable remainder trusts, and provides that payment of the tax shall not constitute a gift subject to Generation Skipping Tax. There is no reference to the special provision of Protocol III to the U.S.-Canada Tax Treaty, Article XXIXB which provides for "the estate of an individual (other than a citizen of the United States) who was a resident of Canada" credit against U.S. estate tax for capital gains tax paid to Canada. Paragraph 7 provides:
"In determining the amount of estate tax imposed by the United States on the estate of an individual who was a resident or citizen of the United States at the time of death, or upon the death of a surviving spouse with respect to a qualified domestic trust created by such an individual or the individual's executor or surviving spouse, a credit shall be allowed against such tax imposed in respect of property situated outside the United States, for the federal and provincial income taxes payable in Canada in respect of such property by reason of the death of the individual or, in the case of a qualified domestic trust, the individual's surviving spouse."
Given that for a decade prior to the implementation of the Protocol there was double taxation (U.S. estate duty and Canadian capital gains tax) on certain property held at death by individuals whose estates were liable for both and in view of the major changes in U.S. estate taxation subsequent to the Protocol, one will have to wait for clarification. Estate of Ballard v. Comm'r, 85 T.C. 300 (1985).
As to conflict of characterization generally, see TAM 9413005 (Germany-U.S.; trust determined to constitute US domestic estate with no treaty exemption notwithstanding that assets not actually distributed to beneficiaries were taxable to them in Germany). Comment: M. Read Moore, "Foreign Affairs 101: Tax and Estate Planning for U.S. Clients Who Own Foreign Property" (2007).
For the rest, the real problem is this: any lawyer or accountant is obliged, ethically and legally, to advise a client to comply with all the tax laws that apply to him or her. But compliance may be impossible or may create conflicts with the interests of other clients, typically members of the U.S. Person's family or employer. Occasionally taxes and penalties could cumulate to the point where they exceed income or assets. This may invoke public policy (ordre public) in the country of residence where the noncompliant U.S. taxpayer would become a public charge.
Tax exceeding 100% of capital was the complaint of the attorneys acting for the Estate of Ned Green (son of Hetty Green) in Texas v. Florida, 306 U.S. 398 (1939) where it was contrived that five states should simultaneously claim estate duty. It is not hard to envisage a case where U.S. income tax would be added to a confiscatory foreign marginal rate: Reuters, May 18, 2013, "Taxes on some wealthy French top 100 pct of income: paper". Even at lower levels of income the withdrawal of benefits and allowances when income exceeds a certain, even modest, level can lead to perverse marginal rates of tax. (UK taxation) In the case of U.S. Persons abroad the Foreign Earned Income Exclusion will not apply to income from investments rather than salary or wages, magnifying the problem in a case where foreign tax credit is not available.
There is no clearer nor more sympathetic story regarding the exorbitance of American nationality and tax laws combined than that of Carol Tapanila of Calgary, Alberta, known as Calgary411, who can speak for herself. — CBC News (2014) ("U.S. FATCA tax law catches unsuspecting Canadians in its crosshairs")
There was hope among interested parties that the Tax Cuts and Jobs Act of 2017 would repeal FATCA. That did not happen; indeed, by further overriding certain tax treaty provisions and by disregarding conflicts of timing and characterization of income and deemed income, the Act may have made the situation worse.
- Forbes, Nov 29, 2017, "For FATCA Repeal, It's Now Or Never".
- Bright Tax CPAs, Nov. 9, 2017: "Trump Tax Reform Bill Analysis - What Does it Mean For US Expats?" (higher gift tax threshold may allow some renunciants to avoid "covered expatriate" status)
- Activists remain hopeful that Rep. George Holding's "Tax Fairness for Americans Abroad Act of 2019" legislative initiative will gain traction. (Link is to 2018 version of the bill, H.R. 7358, as a 2019 bill has not been submitted at the time of writing).
- Natalie Olivo, "Foreign FATCA Criticism Unlikely To Spur Changes", Law360 (June 5, 2019)
- Benjamin M. Willis, The TCJA’s International Tax Schemes, 40 ABA Tax Times No.2 (2021) (GILTI and Transition Tax) (Archived text)
- Moore v. U.S., 9th Cir. Case 20-cv-36122, 53 F.4th 507 (9th Cir. 2022), 36 F.4th 930 (9th Cir. 2022), Docket — Appellant brief — Gov't brief — Oral argument — Pet. Certiorari — Wall St. J. edit., June 15, 2023 — Judgment, W.D. Wash., 2020 WL 6799022 (Constitutionality of transition tax as "wealth tax" not income tax)
- Daniel Bunn, "U.S. Cross-border Tax Reform and the Cautionary Tale of GILTI", Tax Foundation, Feb. 17, 2021
- Autorité de protection des données, "Belgian DPA prohibits the transfer of tax data of Belgian 'Accidental Americans' to the USA", May 24, 2023
15. Tax Discrimination Cases, Human Rights and Other Issues Peripheral to the FATCA Question
- Court of Justice of the European Union: Fidelity Funds v Skatteministeriet, intervener NN (L) SICAV, Case C-480/16, Opinion of Advocate General Mengozzi. (compatibility with the free movement of capital and the freedom to provide services of Danish legislation that grants undertakings for collective investment in transferable securities ("UCITS") established in Denmark which, either in fact or technically, make a minimum distribution to their members, an exemption from tax at source on dividends distributed by Danish companies, to the exclusion of UCITS established in other Member States.) This opinion cites preceding EU case law on tax discrimination.
- John Paul, "The Future of FATCA: Concerns and Issues", 37 N. Ea. J. Leg. Stud., Article 4 (2018)
- BBC: “Paradise Papers: Who are Appleby, the lawyers at the centre of the leak?” (Nov. 5, 2017)
- Colin Riegels "Appleby v The Guardian, a 30 second legal analysis" (Dec. 26, 2017)
- Columbia Journalism Review, Dec. 22, 2017, "The quiet impact of the Paradise Papers"
- Ruth Mason, "Citizenship Taxation", 89 So. Cal. L. Rev. 169 (2016)
- E.L., R.L. and J.O. –L. v. Switzerland, ECHR 75/1996/694/886, 1997-V at 1509; A.P., M.P. and T.P. v. Switzerland, ECHR, 71/1996/690/882, 1997-V at 1477. The European Convention on Human Rights, Art 6 is applicable where penalties and surcharges effectively amounted to criminal penalties: Jussila v Finland, Application 73053/01. And see comment on UK case, HMD Response International v CRC (TC01322). (International human rights limitations on cross-border collection of tax penalties against heirs, innocent transferees).
16. Implications for the Future
The 2017 Act encompassing corporate residence-based taxation did not change the principle of citizenship-based taxation for U.S. individuals. Nor did it relieve from double taxation income that is not provided for under existing statutes and provisions of tax treaties. Closure of IRS attaché offices abroad and general lack of funding seems to have prevented more aggressive enforcement against accidental and expatriate Americans but the matters raised in this article, and particularly the privatization of enforcement through FATCA, has left them in a fragile position (Position paper of Fabien Lehagre, Américains Accidentels, June 10, 2019). Some who have come forward, like Dewees, have paid heavily in terms of back taxes, interest and penalties. Self-disclosure through OVDP and denunciation via the publication of the Panama Papers and other ICIJ disclosures, Birkenfeld and UBS, and Big Data in general, provided an enormous reservoir of information on hidden wealth and tax evasion strategy to tax collectors of all countries. They are likely to shape future legislation and future enforcement activity. See Kimberly Houser and Debra Sanders, "The Use of Big Data Analytics by the IRS: Efficient Solutions or the End of Privacy as We Know It?", 19 Vand. J. Ent. & Tech. L. 817 (2017). The use by HMRC in the U.K. of banking, insurance, real estate and social networking records to compare tax declarations with spending patterns was the subject of an Aug. 14, 2017 Channel 4 TV program, "Catching the Tax Dodgers" (TV Review, Guardian, Aug. 15, 2017).
There is potential for increased cooperation in reciprocal collection of tax debts and for inclusion of tax crimes in future extradition treaties including a waiver of the dual criminality proviso, and for assimilation of tax crimes to money laundering and to common-law and wire fraud and to perjury. What is not apparent is any incentive for Treasury to modernize tax treaties to generalize mutual recognition of pension schemes and tax-sparing savings, including those aimed at educational costs and disability relief.
This bibliographic essay has sought to bring together sources of background materials, including statutes, case law, scholarly analysis and journalists' and tax (and nationality law) professionals' opinions. Nearly all the cases relate to residents of the U.S. with unreported foreign assets and often untaxed income, and to their enablers—in some cases to innocent heirs. The focus of much of the cited literature is enforcement against U.S Persons resident abroad and not to domestic taxpayers concealing income and assets. What appears is the high cost of compliance both to financial intermediaries and to expatriates—and Washington's apparent lack of interest in the incompatibility of foreign residents' family economic life with domestic U.S. tax-driven choices and the tax concessions that incentivize them. Impossibility and double taxation work against the success of FATCA and the U.S. asset and income reporting statutes. To the degree that foreign financial institutions exclude U.S. Persons from becoming account holders there is incentive for them to conceal, misrepresent and deny, with continued noncompliance, perhaps renunciation of citizenship and non-registration of births. There is also incentive to shift assets to nonfinancial investments such as real estate, and until recent IRS intrusion, crypto assets. Statutes meant to ferret out untaxed income hidden abroad by wealthy U.S. residents cannot work well in relation to middle- and working-class Americans abroad, especially those with little personal and economic connection to the U.S. For them, the issue is not hidden untaxed wealth but compromised tax-sparing pension and savings, and corporate retained earnings all falling into a trap created by incompatibilities between U.S. and foreign law. Tax treaties are infrequently revised, and their text is largely dictated by the interests of major stakeholders whose lobbyists are heard in Washington and foreign capitals. Treaty partners have little motivation to lessen the impact of the U.S. "saving clause" beyond a few specified issues typically pensions, government service, administrative matters.
The most vexing problem for any philosopher-jurist has to be not just the hardship and inequity and the apparent "gotcha" mentality of IRS enforcers regretted even by the Agency's own Taxpayer Advocate, but that a law so widely and obviously scorned and ignored abroad may reduce respect for the tax and its enforcement system as a whole as well as the extravagant concept of "allegiance". Ultimately "Tax law is political": Anthony C. Infanti, Bridget J. Crawford, eds., Critical Tax Theory: An Introduction (2009).
 Without in fact offering much reciprocity: ownership of assets in the U.S.A. is often obscured by the applicability of state laws on entities and trusts, and many or most federal treaties, including tax treaties, cannot bind the states without their consent.
 The IRM makes no mention of possible statutory tolling of the time bar. See Robert W. Wood. "How Far Back Can IRS Claim Tax Evasion Or Fraud? Timing Is Everything", Forbes, Oct. 13, 2013; Sam Bruson, "Trump, Tax Fraud, and the Statute of Limitations", The Surly Subgroup tax blog, Oct. 3, 2018; Leslie Book, Procedurally Taxing, Apr. 28, 2016, "Recent Case Highlights How Taxpayer Can Refresh the Statute of Limitations for Tax Evasion Even By Speaking (and Lying) to IRS".
 The literature and the blogs have addressed expatriation issues, renunciation of U.S. citizenship, and the conflicts facing U.S. expatriates in countries that disallow dual nationality and those who are subject to U.S. exit taxation on renunciation.
 "The OECD Committee on Fiscal Affairs (CFA) defines treaty override in its recommendation of 2 October 1989 as 'the enactment of domestic legislation which is intended to nullify unilaterally the application of international treaty obligations'." See Alexander Rust, "Germany: Consequences of a Treaty Override?", in Michael Lang et al, ed., Tax Treaty Case Law Around the Globe (2017).
 John Richardson explains: "The Court’s ruling is based on the proper interpretation of the existing statute and specifically does not (with the exception of Justices Gorsuch and Jackson) deal with the broader issue of issue of permissible limitations on FBAR penalties. This decision would NOT prevent Congress from simply amending the statute to impose a penalty based on each account." [Emphasis in original]
 Allison Christians, "A Global Perspective on Citizenship-Based Taxation", 38 Mich. J. Int'l L. 193 (2017), and Reuven S. Avi-Yonah, "The Case against Taxing Citizens", U. Mich. L. School, Mar. 22, 2010 ("Citizenship-based taxation of Americans living overseas began during the Civil War. … and finally was incorporated into the 'modern' income tax of 1913.").
 Nancy L. Green, "Expatriation, Expatriates, and Expats: The American Transformation of a Concept", 114 Am. Hist. Rev. 307 (2009).
 Brigid McMenamin, "Home Free", Forbes, July 26, 1999, p. 110 (tax benefits of expatriation); Robert Lenzner, "And Don't Come Back", Forbes, Nov. 18, 1996, p. 44. Brigid McMenamin, "Flight Capital: Avoiding U.S. Taxes by Renouncing Citizenship", Forbes, Feb. 28, 1994, p. 55; Christine L. Agnew, "Expatriation, Double Taxation, and Treaty Override: Who is Eating Crow Now?", 28 U. Miami Inter-Am. L. Rev. 69 (1996), Joint Committee on Taxation, "Review of the Present-Law Tax and Immigration Treatment of Relinquishment of Citizenship and Termination of Long-Term Residency" (2003); Karen de Witt, "Some of Rich Find A Passport Lost Is A Fortune Gained", N.Y. Times, Apr. 12, 1995.
 John Richardson, "You are a “covered expatriate” – How the “Exit Tax” is actually calculated"; "The 'Exit Tax' in action – Five actual scenarios with 5 actual completed U.S. tax returns" and "Relinquishing US citizenship: South African Apartheid, the Accidental Taxpayer and the United States S. 877A exit tax".
 Samuel Rubenfeld, "Inside the U.S. Swiss Bank Tax Evasion Program", Wall St. J., June 1, 2016 (Archived copy); Niels Jensen, "How to Kill the Scapegoat: Addressing Offshore Tax Evasion with a Special View to Switzerland", 63 Vand. L. Rev. 1823 (2010) ("a bilateral tax withholding system—the only feasible solution that promises relief in the near future.").
 Fugitive disentitlement doctrine: Molinaro v. New Jersey, 396 U.S. 365 (1970), subsequently restrained by Ortega-Rodriguez v. U.S., 507 U.S. 234 (1993); State v. Bell, 2000 ND 58, 608 N.W.2d 232 (2000) (discussion of states' practices); Wittgenstein v. INS, 124 F.3d 1244 (10th Cir. 1997) (deportation case; further background at 163 F3d 1164 (10th Cir. 1998)); Pecoraro v. Commissioner, T.C. Memo. 1995-220 and Daccarett-Ghia v. Comm'r, 70 F.3d 621 (D.C. Cir. 1995) (declining to dismiss tax appeals). See also Walsh v. Walsh, 221 F.3d 204 (1st Cir. 200) (child custody); In re Henson, 289 B.R. 730 (Bankr. N.D. Calif. 2002) (bankruptcy) (all discussing prior cases). The doctrine may not bar the defense of unrelated civil claims, Federal Deposit Ins. Corp. v. Pharaon, 178 F.3d 1159 (11th Cir. 1999); it cannot be used to deny a hearing in civil forfeiture cases, Degen v. United States, 517 U.S. 820 (1996), but may bar a child custody action, Prevot v. Prevot (In re Prevot), 59 F.3d 556 (6th Cir. 1999), 244 F.3d 1250 and Mishkin Pesin v. Osorio Rodriguez, 244 F.3d 1250 (11th Cir. 2001). The doctrine is stronger in the USA than England: compare Parretti v. U.S., 143F.3d 508 (9th Cir. 1998) with Polanski v. Condé Nast Publications Ltd.,  UKHL 10,  1 W.L.R. 637; one explanation, mentioned in Polanski, may be the interpretation given to Art. 6(1) of the European Convention on Human Rights (right to a "fair and public hearing within a reasonable time" in determination of civil rights and obligations. In Canada the issue has been addressed in relation to the right of appeal while a fugitive: R. v. Piché (C.A., Quebec 1994, reported only as 1994 CarswellQue 1047 (Westlaw), citing R. v. Dzambas, (1974) 14 C.C.C. (2d) 364 (Ont. C.A.); and see Jaffe v. Miller, reported only as 1994 CarswellOnt 2871 (Ont. C.J.), discussing Jaffe v. Snow, 610 So.2d 482 (C.A. Fla. 5th Dist. 1993), applying fugitive disententitlement doctrine to bar wife from enforcing a Canadian judgment on claims derivative from fugitive husband.
 The markers of U.S. status obliging FFIs to inquire further are listed in the model Intergovernmental Agreement, "Due diligence obligations for identifying and reporting on U.S. reportable accounts", Annex I, page 16. GAO Report, "Implications of Deleting the Birthplace in U.S. Passports" (1985).
 John Richardson and Michael S. Kirsch have commented on tax law having created a unique concept of "citizenship" without "rights", only obligations. This includes certain renunciants, former Green Card Holders, "covered expatriates" and categories of "accidental Americans" and deportees.
 This writer has appeared as counsel in a religious court to "prove" the ancestral religion of a party seeking to be married under religious law endorsed by the Marriage Act 1949, of which Part III Art. 26 controls marriages according to Jewish law, and Art 26 and 47 marriages according to usages of the Society of Friends.
 Jack Townsend, "The Mirror Code Concept; Some Thoughts and Ruminations", May 27, 2013; Appleton v. Comm'r, 140 T.C. 273 (2013).
 Noncontinuous residence allowed, nothing said about the alternative of parental residence abroad as dependent of military or of government or international organization employee: a very few offspring born abroad to U.S. government and military dependents abroad might be citizens subsequently who would not have been before.
 The case did not concern the alien mother but the American father and the constitutionally-based law revision depended on sex discrimination: Moritz v. Comm'r, 469 F.2d 466 (10th Cir. 1972), Lila Thulin, "The True Story of the Case Ruth Bader Ginsburg Argues in 'On the Basis of Sex'", smithsonian.com, Dec. 24, 2018.
 As to Puerto Rico, see the Jones–Shafroth Act (Pub. L. 64–368, 39 Stat. 951, enacted Mar. 2, 1917) — History at House of Representatives Archives, — Comment, Charles R. Venator-Santiago, "The Jones Act made Puerto Ricans citizens, yet not fully American", Baltimore Sun, Thurs., Mar. 15, 2018. (Archived copy)
 As to Filipinos before July 4, 1946 see Application of Viloria, 84 F. Supp. 584 (D. Haw. 1949). Many or most Native Americans were noncitizen protégés prior June 2, 1924 and the Indian Citizenship Act of 1924, Pub. L. 68-175, 43 Stat. 253, 8 U.S. Code § 1401(b); N. D. Houghton, Legal Status of Indian Suffrage in the United States, 19 Calif. L. Rev. 507 (1931); Willard Hughes Rollings, Citizenship and Suffrage: The Native American Struggle for Rights in the American West 1830-1965, 5 Nev. L. J. 126 (2004). An anecdote on the rejection by Canadian authorities of a "Haudenosaunee Nation passport" offered in lieu of the recognized "enhanced tribal status card" sheds light on the frustrations of border tribes today relating to sovereignty and rights as well as grievances over taxation and racism. Native tribes on the Mexican border (see below, José Luis Rocha articles) have comparable grievances over rights, nonrespect, proof of identity and accusations of smuggling.
 On the Tohono O'odham and other borderland native status issues, see José Luis Rocha, Revista Envío, Central American University (1915): The American Dream’s anteroom is Mexico’s nightmare, Solid and liquid border vigilance, Part 1; The Mexico-US border: The Border Patrol’s empire, Solid and liquid border vigilance, Part 2; The Mexico-US border: A very lucrative, inefficient business, Solid and liquid border vigilance, Part 3.
 Michael Walter, “The Bancroft Conventions: Second-Class Citizenship for Naturalized Americans”, 12 Int. Lawyer 825 (1978); Encyclopedia of Public International Law & Human Rights and the Individual in International Law; International Economic Relations (1985), p. 46.
 Perhaps an opportunity for certain expatriates to claim involuntary loss of nationality and avoid expatriate tax and covered expatriate status.
 Prior practice, from International Income Tax and Estate Planning § 3:3 (2d ed.): "Previously, Rev. Rul. 70-506, 1970-2 C.B. 1 concluded that United States citizens who were mistakenly treated as having lost citizenship under 8 U.S.C.A. § 1484 would continue to be taxed as United States citizens from 1971 forward. Furthermore, native-born United States citizens who, as a result of marriage to foreign citizens, lost their citizenship under the Expatriation Act of 1907, which under current law would be unconstitutional, were to be treated as citizens for tax purposes from January 1, 1976. Rev. Rul. 75-357, 1975-2 C.B. 5."
 This link may be deactivated if the Netherlands amends its Nationality Act to allow dual nationality in more cases. Countries shown as of May 2019 without provision for loss of citizenship: Algeria, Angola, Argentina, Bangladesh, Burkina Faso, Costa Rica, Cuba, Dominican Republic, Ecuador, Greece, Iran, Libya, Nicaragua, Pakistan, Sudan, Taiwan, Yemen.
 "'[C]itizen' of the United States wherever used in connection with the estate tax includes every decedent who was a United States citizen resident in a possession of the United States unless he acquired citizenship solely by reason of (1) his being a citizen of a possession of the United States, or (2) birth or residence within a possession of the United States." 26 U.S.C. §§ 2208, 2209; Rev. Rul. 74-25; TAM 7612220070A; General Counsel Memorandum 36944, Dec. 10, 1976; PLR 9403009 (see Territorial Citizens Have Unique Tax Status, St. John Source, may 26, 2001). While perhaps of limited significance given the current basic exclusion of over $10 million it creates an interesting subset of "U.S. citizen" along with that of "noncitizen national" for tax purposes. And see John R. Hein, "Born in the U.S.A. But Not Natural Born: How Congressional Territorial Policy Bars Native-born Puerto Ricans from the Presidency", 11 J. Const'l L. 423 (2009).
 Algeria, Angola, Argentina, Bangladesh, Burkina Faso, Costa Rica, Cuba, Dominican Republic, Ecuador, Greece, Iran, Libya, Nicaragua, Pakistan, Sudan, Taiwan, Yemen among them. See Netherlands Immigration and Naturalization (2019).
 If the conclusion is that an individual has valid U.S. citizenship status circumstances may dictate approaching the tax issue carefully, with a view to lawyer-client privilege and a "Kovel letter". A "Kovel" accountant may or may not resolve the privilege issue: Robert S. Steinberg, "Tax Crimes: Kicking the Hornet's Nest: Both lawyer and client can be stung in an IRS investigation", Family Lawyer Magainze, July 18, 2012, at 38.
 Calvin's Case; Aeneas Macdonald; Sir Frederick Pollock & Frederic W. Maitland, History of English Law, vol. 1, p. 299 (2d ed.1898); Sir Francis T. Piggott, “Ligeance of the King”, 83 Nineteenth Century and After 729 (1915); Clive Parry, British Nationality Law and the History of Naturalisation (1954). See Grossman, Birthright Citizenship as Nationality of Convenience, Proceedings, Council of Europe, Third Conference on Nationality, Strasbourg, 11-12 Oct. 2004, pp. 109-21.
 Edward A. Zelinsky, Defining Residence for Income Tax Purposes: Domicile as Gap-Filler, Citizenship as Proxy and Gap-Filler, 38 Mich. J. Int'l L. 271 (2017)
 Holman v. Johnson, (1775) 1 Cowp. 341, 98 Eng. Rep. 1120; also Planché v. Fletcher, (1779) 1 Dougl. 251, 99 Eng. Rep. 164 (1779). "It is now recognized that the often quoted citation of Lord Mansfield in Holman v. Johnson (1775) 1 Cowp. 341: 'No country ever takes notice of the revenue laws of another' does not represent the law". 2 Dicey, Morris & Collins, 11th ed. (1987) at 1230, n. 22; cf. 14th ed. (2006) at 105-07.
 Comparable provisions in U.S. tax treaties with France (Art. 28), Denmark (Art. 27), Netherlands (Art. 31), Sweden (Art. 27); and Japan (Art. 27) — EY, Tax Treaty between the United States and Japan ("On 24 January, 2013, the United States and Japan signed a new Protocol … Expanded and strengthened provisions regarding assistance in the collection of taxes") — Sullivan and Cromwell, "Japan and the United States Sign a Protocol Amending the Existing Japan-U.S. Income Tax Treaty" (2013). See IRM Part 5, Ch. 21, Sect. 3, "Collection Tools for International Cases".
 "There have been several noteworthy tax cases in which a defendant or target of an investigation fled." DOJ Criminal Tax Manual, ¶ 5.04, Detention and Bail, p. 11, FN 4. Also Justice Undone: Clemency Decisions in the Clinton White House, Second Report by the Committee on Government Reform, vol. 1 (2002), Executive Summary.
 See unpublished essay, "Conflict of Laws in Fraudulent Transfer and Paulian Actions" (1993).
 Pension savings, including SIPPs but less arguably so Junior SIPPs (for non-earning minors) are free of tax on contributions and accruals, including PFIC taxation, until paid out as benefits. SIPPs are deemed subject to reporting by FBAR as foreign financial assets. See Art. 19, US-UK Tax Treaty. And see Holly Payling, "Changes to foreign pensions for US taxpayers – or not?", Buzzacot, May 28, 2020 (Archived copy) ("The IRS has released new rules regarding Foreign Pensions, detailed in Revenue Procedure 2020-17" which may or may not apply to UK self-invested pension plans.) The IRS had not replied to Ms Payling's (or anyone else's) queries and there has been no published litigation. By and large it is unwise to volunteer into the Foreign Trust reporting system without professional advice to do so: IRS Ogden can impose severe penalties for 3520/3520-A errors and omissions but our search for litigation of the sort that FBAR penalties gave rise to have yielded not even a single case.