I recently blogged on an order in United States v. Scharzbaum(S.D. Fla. Dkt # 18-cv-81147-BLOOM/Reinhart) to repatriate Swiss account funds based on the district court’s holding that a U.S. person was subject to the willful penalty. District Court Upholds Repatriation Order for FBAR Willful Penalty While Liability on Appeal (11/4/21; 11/5/21)), here. The parties continue to fight about whether the repatriation order should be stayed pending the outcome of the appeal. The pleadings on that commotion may be viewed on CourtListener, here, but Schwarzbaum summarizes his position in the Motion to Stay
If, on the other hand, the Court refuses to stay its Order and Mr. Schwarzbaum is forced to liquidate his foreign investment accounts before the appeal is concluded, he faces the threat of significant and irreparable harm. Mr. Schwarzbaum would be required to pay the transaction costs [*2] and income taxes associated with the liquidation and transfer of his assets into the United States. If this Court’s decision is subsequently overturned, Mr. Schwarzbaum would not be able to secure a refund of those taxes, nor could he force the United States to make him whole for the costs and taxes he never should have been required to pay. To avoid this untenable result, the Court should stay its Repatriation Order pending conclusion of the appeal.
In United States v. Monica Harrington (D. Colo. 1:21-cv-02601-RBJz), CL Docket Entries here, the Government sought a preliminary injunction against Monica Harrington to require her to repatriate funds in a Swiss account. See Docket entry # 1, here. This request relates to an FBAR collection action against Monica Harrington’s husband, George Harrington, who allegedly transferred ownership of the account to his wife to avoid the U.S. collecting in the event the U.S. prevails in the FBAR collection suit. The FBAR collection case against the husband is still pending. United States v. George Harrington (D. Colo 1:19-cv-02965), CL Docket Entries here.
In the Monica Harrington case, the court entered a stipulated order here, that “Monica Harrington, or anyone acting on her behalf, will not, directly or indirectly, encumber, liquidate, or dispose of the assets in her Vontobel Holding AG account such that at least $2.2 million remains available in that account.” Monica Harrington is further “required to report annually by filing a bank statement reflecting the balance in the account,” may “not travel outside the United States,” and turn over to her attorney her U.S. and German passports. Violation of the order “will constitute contempt of Court.”
It is not clear whether such an alternative was explored in Schwarzbaumto forego repatriation while the case is on appeal. Of course, as the Government notes in opposing Schwarzbaum’s motion for stay, once a judgment has been rendered, the usual requirement for such a stay on collection on the judgment (the repatriation order is a collection action) is to post a bond which, apparently, Schwarzbaum was unwilling to do.