In United States v. Schwarzbaum (S.D. Fla. Case # 18-cv-81147-BLOOM/Reinhart Dkt #146 5/16/22), CL here, the Court granted the Government’s motion to retain jurisdiction while the FBAR penalty is remanded to the IRS for recalculation. The pleadings on the motion and much other commotion at the district court level can be reviewed on the CourtListener docket entries site for the case here. I have previously covered the issues on retention of jurisdiction: More Thrashing in Schwarzbaum on Effect of Eleventh Circuit’s Remand to Remand to IRS on Statute of Limitations (4/1/22; 4/7/22), here; see also 11th Cir. Remands For IRS To Re-Determine FBAR Penalties After Affirming Original Calculation Was Arbitrary And Capricious (1/26/22), here.
The net effect of retaining jurisdiction is that the fight over the statute of limitations with respect to the recalculated FBAR penalty will be thrashed out later, probably on appeal after the district court enters judgment on the recalculated penalty amount. I am not an administrative law or Administrative Procedure Act (APA) expert, so I don’t know and cannot credibly predict what the ultimate resolution of the issue will be. Can the IRS correct an “arbitrary and capricious” assessment outside the six-year limitations period? My best guess is that the law is not clear on the issue. I can say that correcting the assessment amount with the old timely assessment remaining in effect seems like the “right” answer. I just cannot speculate credibly on whether the law permits that right answer.