Acceptance by the Criminal Investigation Division (CID) of an FBAR referral depends on the strength of the evidence establishing willfulness. To aid in the examination a Fraud Technical Advisor (FTA) determines whether or not there is a willful violation. The FTA will be brought in as soon as possible after a determination is made that the case warrants referral. If the FTA considers investigation is not appropriate, the FTA will so advise the examiner so that he or she can move forward with civil FBAR procedures. If there are “firm indications” of willful FBAR violation then it is the job of the examiner, upon recommendation by the FTA, to prepare Form 2797, Referral Report of Potential Criminal Fraud Cases, with a detailed explanation of the FBAR violations to be processed by CID.
If CID declines to accept the referral, the examiner follows procedures whereby material violations and civil penalties are asserted. Conversely, if the referral is accepted, the examiner will place a transmittal memorandum in file indicating acceptance. After completion of the criminal case or, parallel, if faced with a pending statute of limitations, the examiner may commence any appropriate civil FBAR penalty action.
