The U.S. Tax Court has held that it does not have jurisdiction to review the IRS’s decision to impose an FBAR penalty. In Williams v. Commissioner, upon receipt of a notice of deficiency covering income taxes for years 1993 – 2000, the taxpayer filed a petition seeking, among other things, a redetermination of penalties imposed under 31 U.S.C. § 5321 for failure to file foreign bank account reports (FBARs) to disclose his Swiss bank accounts. The IRS can assess the FBAR penalty and “commence a civil action to recover” it. For certain taxes, the IRS is required to issue a notice of deficiency before making an assessment. Upon receipt of this notice, the filing of a timely petition with the Tax Court triggers the court’s “deficiency” jurisdiction to redetermine the tax shown in the notice. Because the IRS is not required to issue a notice of deficiency before assessing the FBAR penalty, the court reasoned, the FBAR penalty falls outside the court’s deficiency jurisdiction.
