Attorney-at-Law

FBAR OR FUBAR? – PART DEUX

In Uncategorized on 03/14/2016 at 16:02

Readers of my blog (those few, those happy few) may remember that a couple years ago (hi, Judge Holmes) Judge Lauber wrestled with the concept that FBAR penalties don’t fit within the $2 million box for whistleblowing recovery. For those with shorter memories, see my blogpost “FBAR or FUBAR?” 8/4/14.

Well, today we have the answer. It’s Whistleblower 22716-13W, 146 T. C. 6, filed 3/14/16 (Pi in the sky), and Judge Lauber answers his own question, with a unanimous court at his back. FBAR is not part of the calculation. FBAR non-filing penalties are Title 31, not Title 26. And this, notwithstanding the impassioned amicusness of the National Whistleblowers Center.

Now those of you who hang on every word of Judge Lauber’s polished prose can read all 25 pages of His Honor’s trek through the Code and caselaw. But at close of play the FBAR number is not an “additional amount” of tax or penalty thereon.

And when you unpack Judge Lauber’s exegesis, it boils down to the Associate Chief Counsel’s memorandum, cited in my blogpost, supra, as my already-on-their-second Grey-Goose-Gibson colleagues would say.

That it’s bad policy, and will discourage whistleblowers from unmasking offshore dodgers, to the detriment of our already overburdened fisc, is sad but true. Judge Lauber says, don’t blame us, talk to Congress.

Good luck with that.

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