In United States v. Solomon, No. 20-82236-CIV-CAN, 2021 U.S. Dist. LEXIS 210602 (S.D. Fla. Oct. 27, 2021), CL here, in a nonwillful FBAR collection suit, the Court held:

1. The FBAR assessment statute of limitations is an affirmative defense that may be waived by the person assessed the penalty (no distinction here between willful and nonwillful).  The FBAR assessment statute of limitations has no provision such as § 6501(c)(4) that requires that extensions by agreement must be made while the otherwise applicable period of limitations for tax assessments is still open; perhaps the implication is that, except for that explicit limitation on waivers by agreement, a taxpayer could waive with an untimely agreement. (In this regard, the Solomon court does conclude that the FBAR statute of limitations is not jurisdictional and thus can be waived.)  Accordingly, the execution of the agreement to extend for the FBAR penalties was a waiver of the statute of limitations that had already expired.  (On the jurisdictional issue, see Keith Fogg, IRS Succeeds in Jurisdictional Argument – With a Twist (Procedurally Taxing Blog 11/4/21), here.)

2.  The nonwillful penalty is per account rather than per form, adopting the Government’s position on this issue.  As the court notes in the following footnote (Slip Op. 10 n. 4):

n4 Of the courts that have addressed this issue to date, all but one have rejected the government’s view, ruling or otherwise suggesting that a non-willful “violation” of the reporting requirement in 31 U.S.C. § 5314 is the failure to file an annual FBAR report — not the failure to “report” the citizen’s interest in each foreign financial account. See United States v. Boyd, 991 F.3d 1077 (9th Cir. 2021) (rejecting government’s view); United States v. Bittner, 469 F. Supp. 3d 709 (E.D. Tex. 2020) appeal docketed, No. 20-40612 (5th Cir. Sept. 18, 2020) (same); United States v. Kaufman, 3:18-CV-00787 (KAD), 2021 WL 83478, **8–11 (D. Conn. Jan. 11, 2021) (same); United States v. Giraldi, CV202830SDWLDW, 2021 WL 1016215, *5 n.8 (D.N.J. Mar. 16, 2021) (same). But see United States v. Stromme, No. 20-24800-CIV (S.D. Fla. Jan. 25, 2021) (ECF No. 18 p. 3) (granting judgment in favor of United States for the full amount of penalties sought, agreeing that “each unreported relationship with a foreign financial agency constitutes an FBAR violation”). 

The Court’s analysis is comprehensive and well-reasoned, adopting in part Judge Ikuta’s dissent in Boyd.  (That is not to say that the court’s conclusion is right, for I think the issue is the type of issue that really can go either way; as I view these “go either way” issues, they proceed in search of a consensus (either in the courts or by statutory amendment) so that similarly situated citizens at some point get treated similarly but until consensus is reached, it is messy.)