The thrust of the article is the certification of non-willfulness is risky and not for the poorly counseled, particularly because false certifications can lead to higher penalties (even than offered by OVDP) or even criminal prosecution.
I do agree with the thrust of the article. I will quibble with part of one of the paragraph of the article.
Citing Cheek v. United States, 498 U.S. 192 (1991), Alan W. Granwell of Sharp Partners PA said that willfulness requires awareness of a legal duty, but it does not go so far as to require the taxpayer to be aware of the specific statutory provision for a tax violation. Speaking on willfulness under foreign bank account reporting requirements, which are under Title 31, William M. Sharp, also of Sharp Partners, said that it could be more difficult to show an intentional disregard of a known legal duty under Title 26 than under Title 31. In United States v. McBride, No. 2:09-cv-00378 (D. Utah 2012) 2012 TNT 219-21: Court Opinions, the court determined that the taxpayer's signature on the return constituted knowledge of a duty to comply with FBAR requirements.I focus on the second two sentences of this paragraph.
1. The standard for both Title 26 criminal violations with a willful element is intentional violation of a known legal duty. The sentence in the paragraph above uses "disregard" rather than "violation," but I think the word disregard weakens the requirement and prefer the standard formulation of intentional violation of a known legal duty. That is perhaps a quibble. But, focusing on whether there would be a difference in the Government's difficulty of proof between Title 26 and Title 31's FBAR requirements, the standard is exactly the same. The only difference is proof levels. In both Title 26 and Title 31's FBAR criminal prosecutions, the standard is the same and the proof level -- beyond a reasonable doubt -- is the exactly same. No difference. Now when we turn to the civil FBAR penalty and compare to the Title 26 and Title 31 criminal penalties, the proof level is different. Criminal requires beyond a reasonable doubt. Civil requires preponderance or, I argue, clear and convincing. But the standard -- intentional violation of a known legal duty is the same.