I will focus on the FBAR side of the issue here. The FBAR willfulness civil penalty is as follows (Section 5321(a)(5)(C), here:
(C) Willful violations.— In the case of any person willfully violating, or willfully causing any violation of, any provision of section 5314—So, the key statutory term is willfully. As the Courts have noted on many occasions, when Congress uses the term willfully in statutory schemes, it may mean different things. See Bryan v. United States, 524 U.S. 184, ___ (1998), here. However, as Cheek noted, in the federal tax criminal provisions, it means intent to violate a known legal duty. Cheek v. United States, 498 U.S. 192 (1991), here. In Ratzlaf v. United States, 510 U.S. 135 (1994), here, the Supreme Court held that willfully as used in Section 5322(a), here, the criminal provision for willfully violating the antistructuring provisions, should be interpreted the same as in Cheek -- intent to violate a known legal duty. Ratzlaf had to know that structuring was illegal and intend to violate the law in order to be prosecuted. In the course of so holding, the Court said:
(i) the maximum penalty under subparagraph (B)(i) shall be increased to the greater of—
(I) $100,000, or
(II) 50 percent of the amount determined under subparagraph (D),
A term appearing in several places in a statutory text is generally read the same way each time it appears. See Estate of Cowart v. Nicklos Drilling Co., 505 U.S. 469, 479, 120 L. Ed. 2d 379, 112 S. Ct. 2589 (1992). We have even stronger cause to construe a single formulation, here § 5322(a), the same way each time it is called into play. See United States v. Aversa, 984 F.2d 493, 498 (CA1 1993) (en banc) ("Ascribing various meanings to a single iteration of [§ 5322(a)'s willfulness requirement] -- reading the word differently for each code section to which it applies -- would open Pandora's jar. If courts can render meaning so malleable, the usefulness of a single penalty provision for a group of related code sections will be eviscerated and . . . almost any code section that references a group of other code sections would become susceptible to individuated interpretation.").The FBAR criminal penalty is in Section 5322(a) also. The FBAR civil willfullness penalty is part of the same regulatory scheme, incorporated in the immediately preceding Code section, Section 5321. Significantly, Section 5321(d) says that the civil penalty can apply "notwithstanding the fact that a criminal penalty is imposed with respect to the same violation." So, referring to the above quote from Ratzlaf, willfulness for purposes of the civil penalty would have the same interpretation of willfully -- intent to violate a known legal duty. Hence, the IRM says that, for purposes of the FBAR civil penalty, "The test for willfulness is whether there was a voluntary, intentional violation of a known legal duty. 184.108.40.206.5.3 (07-01-2008) FBAR Willfulness Penalty - Willfulness, here. We thus do not have to pick among possible meanings of willfully, we know the meaning of willfully.