Brief of the American College of Trust and Estate Counsel as Amicus Curiae in Support of Neither Party
Private Wealth Services attorney Kevin Packman worked with The American College of Trust & Estate Counsel (ACTEC) on an amicus curiae brief for the case Alexandru Bittner v. United States. In 1970, in response to concerns regarding the unavailability of foreign account records of persons thought to be engaged in illegal activities, Congress enacted the Bank Records and Foreign Transactions Act, commonly known as the Bank Secrecy Act (BSA). The BSA currently authorizes a $10,000 civil money penalty for foreign account reporting violations that are not willful (non-willful) and that do not satisfy the reasonable cause exception. The parties frame the question before the Court as whether the non-willful penalty is applied (a) per year per Foreign Bank Account Report (FBAR) not properly filed by a person, or (b) per year per foreign account maintained by a person and not reported. The referenced case relates to one person’s violation, but "person" as it relates to fiduciary parties is complex and may change. In order to assist the Court in its consideration of the construction of the statute, this brief discusses the evolution of the BSA to include non-willful violations of the BSA; the effect of the statute on fiduciary parties; the alternative statutory constructions; and the potential constitutional impact of the statute as construed.