And Its Effect in Light of the Court’s Refusal to Hear the Toth Case
By Fred Einbinder, Board Member and VP Advocacy
Chicago, March 14, 2023
In the November 8, 2022 issue of News and Views, the first installment of our series devoted to the evolving law on US financial reporting requirements analyzed the FBAR Bittner case which had just been argued before the US Supreme Court. As reported on March 1, 2023 in News and Views, the US Supreme Court, in a major decision decided the previous day (February 28) in favor of the petitioner, Alexandru Bittner, a dual Romanian and US citizen, agreed with Bittner that penalties for non-willful violations of FBAR filing requirements are to be assessed on a “per report” rather than a “per account” basis as contended by the IRS. The practical effect for Mr. Bittner of this decision is enormous, reducing his total fine for oversights in his FBAR filings to $50,000 (maximum $10,000 fine x 5 years) versus the $2,72 million fine ($10,000 x 272 financial accounts) which had been levied by the IRS and upheld by the 5th Circuit Court of Appeals whose decision the Supreme Court overturned.
The decision’s importance, however, extends far beyond the individual practical benefit to Mr. Bittner or Americans abroad (or those living in the US with ‘foreign’ financial accounts) who, like Bittner. may be faced with fines for non-willful compliance. In its acknowledgement of the singularity of the Americans abroad experience, criticism of the lack of “fair notice’ to taxpayers, the questioning of the terrorist/drug cartel justification for FBAR’s harsh financial reporting penalty regime, Bittner breaks new ground.
In its advocacy efforts, AARO has repeatedly raised these arguments. Their adoption by Justice Gorsuch may, it is hoped, be a harbinger of progress in the treatment of Americans abroad and therefore of interest to all AARO members and the larger community of Americans resident overseas who have not (yet) joined AARO.
The qualification of the Bittner decision as a “nice win” is therefore certainly appropriate on both practical and morale grounds. However, while favorable, its actual effect due to its limitation to non-willful violations will likely be limited. Bittner must be considered in conjunction with other FBAR cases recently decided or working their way through the courts.
This second installment in our financial reporting series will therefore also analyze the consequences of the denial by the Supreme Court of the petition for certiorari for review in the Toth v. United States case, as reported by AARO in the January 31, 2023 issue of News and Views, and the importance of the rare dissent to that denial authored by Justice Gorsuch. Of particular interest in the Toth dissent is Justice Gorsuch’s apparent recognition that the IRS seeks fines for revenue raising purposes.
The Bedrosian v. United States case, which squarely raises the questions of the basis for the non-willful/willful distinction and “excessive fines” under the Eighth Amendment at issue in Toth, is presently the subject of a petition for review for certiorari (review by the Supreme Court) and will be the subject of an upcoming third installment in this financial reporting series.
I once again benefitted from conversations with Zhanna Ziering of the New York office of the Moore Tax Group, one of the drafters of the Amicus brief on behalf of the Center for Taxpayer Rights submitted (and cited in the majority opinion) in Bittner, as well as with Jay Weill, one of the most experienced litigators in the field who is a partner at Sideman & Bancroft in San Francisco. AARO members as well as non-members will have the opportunity to hear Zhanna and Jay speak to the practical aspects involved in filing FBARs and other required financial reporting forms, as well as their perspectives on the evolving legal landscape, in our Financial Reporting Seminar scheduled for April 25, 2023.
We now turn to our analyses of the Bittner and Toth cases tailored to the concerns of our members and other readers, and which therefore will not examine the more legally technical parts of the Bittner decision relating to statutory interpretation and construction. For example, issues of statutory construction and the application of the “rule of lenity” (a portion of the opinion with limited precedential value as joined by only two justices (Gorsuch and Jackson)) are not discussed here. For those interested in these aspects, the majority and dissenting opinions as well as expert commentaries can be easily found in a simple Google search of Bittner v. United States.
As readers of previous News and Views will recall, Alexandru Bittner is a dual Romanian-US citizen who emigrated to the US in 1982, acquiring citizenship in 1987/8. He was the classic hard working “American dream” immigrant, working first as a dishwasher and then as a plumber before returning to Romania in 1990. His timing for his return proved right for he was able to become a successful entrepreneur after the fall of the Ceausescu regime in Romania.
During his rise to wealth in the country of his birth he opened numerous bank accounts in Romania, Switzerland and Liechtenstein – duly noted in the Bittner dissent, more on which will follow a common practice for Romanians in the unstable post-Soviet period. For several of the accounts, which included investments in hotels and deals with the Romanian government, Bittner held only a “qualifying interest” rather than signature authority. Difficulties in interpreting this term exemplifies the complexity inherent in complying with FBAR regulations.
As explicitly recognized in the majority opinion, Bittner, as ‘many dual citizens, did not appreciate’ that he was required under US law to declare his non-US financial accounts ‘even while he lived abroad’. On learning of this obligation upon his return to the US in 2011, he promptly and voluntarily filed FBARs for the years 2007-2011. While no errors were found in Bittner’s largest account, the IRS identified deficiencies in over 25 other accounts. Bittner consequently hired a new accountant and refiled, providing details concerning each account. This is notable since FBAR regulations do not require disclosure of details concerning financial accounts from individuals with 25 or more accounts. All these individuals need disclose is the total number of accounts with details only required when requested by the IRS. The IRS did not contest the accuracy of the new filings by Bittner, nor did it suggest that his previous errors were “willful”.
The IRS, using a “per account” as opposed to a “per report” (annual) formula, assessed Mr. Bittner $2.72 million in fines, which Bittner contested. The US Supreme Court agreed with Mr. Bittner in a majority decision written by Justice Gorsuch, resulting in a reduction of Bittner’s total fines to $50,000.
Monica Toth is an 83-year-old grandmother living in Boston who became a US citizen in 1980. Her problems with the IRS arose from the existence of a $4.2 million Swiss bank account set up by her father in her name just prior to his death in 1992. Her father had fled the violent antisemitism of Germany in the 1930’s, escaping to Argentina where he became a successful businessman. As recognized by Justice Gorsuch in his dissent to the denial of ‘certiorari’ (the mechanism for review of a case by the Supreme Court) it is likely that Toth’s father's establishment of the account and counsel to his daughter to keep the money in Switzerland ‘just in case’ was motivated by his experience in escaping from Nazi Germany.
Ms. Toth failed to file FBARs for the account for several years. She contended that she retroactively filed the necessary disclosures upon learning of the FBAR disclosure requirement and that her failure to do so earlier was innocent. Toth handled her tax and reporting filings herself, paying $40,000 in back taxes and assumed that she had fully complied. The IRS, after an audit, disagreed with Toth, charging her with willful violations and assessing her a fine totaling $3.1 million (one half of the balance of her $4.2 million Swiss account plus $1 million in late fees and interest).
Toth's self-representation proved disastrous. She later engaged counsel who argued that the IRS assessment violated the “Excessive Fines” Clause of the Eight Amendment to the US Constitution.
Toth’s petition for certiorari to the Supreme Court was denied on January 23, 2023. However, Justice Gorsuch authored a dissent to this denial of review, a rare occurrence, as analyzed below.
Alexandru Bittner and Monica Toth had significant sums invested in non-US financial accounts. Most of us do not. One might therefore be tempted to take the view that they are merely rare examples of the IRS’ attention-grabbing use of draconian penalties to compel compliance with financial reporting requirements and of little practical importance to one’s own situation,
This may be true for the majority of AARO members and Americans abroad generally whose compliance with FBAR and other financial reporting disclosure obligations may be fairly straightforward.
In informing our members of these and other case law developments we do not intend to induce unnecessary anxiety concerning financial reporting. However, there is little doubt that the increasing number of cases contesting fines before the courts and the experience of practitioners indicate an increasing risk for Americans abroad (and US residents with foreign accounts) considered as non-compliant by the authorities. Several cases before the courts or subjects of ongoing IRS proceedings involve far smaller amounts (as little as balances of $30 to $816) than in Bittner or Toth and run the gamut of situations of Americans abroad (businesspersons as Bittner, gifts or inheritances as Toth, joint spousal accounts…). Present financial reporting requirements unfortunately contain “traps for the unwary” caused by the regulatory framework’s complexity and differing forms, the reduction and consolidation of which is a major objective of AARO’s advocacy objectives.
It behooves Americans residing abroad to become familiar with their financial reporting obligations and learn the hard lessons of cases such as Toth, such as the unfortunate reality that legal counsel is often essential in proceedings with the IRS. AARO, through its educational efforts, such as the organization of the upcoming Financial Reporting seminar led by Zhanna Ziering with Jay Weill and the “Ask an Expert” assistance, attempts to help its members (and future members) in this task.
The US Supreme Court in a close 5-4 decision issued on February 28, 2023 held that penalties for non-willful violations of FBAR filing requirements are to be assessed on a “per report” rather than a “per account” basis as contended by the IRS. This decision settled a conflict between two circuit (regional) federal courts of appeals, the 5th Circuit, based in New Orleans, which had followed the IRS’s “per account” basis in its imposition of penalties on Bittner, and the 9th Circuit based in San Francisco, which had adopted the ”per-annual-report” basis in a previous case, US v. Boyd.
The result in Bittner means that the maximum civil penalty for violations to the extent they are deemed “non-willful” will be limited to a maximum of $10,000 per year. While many professionals in the field as well as commentators may gloss over this amount with a sign of relief, most Americans abroad will continue to regard this level of penalty, especially given its limitation to non-willful oversights, as stiff.
That this favorable decision was a “nice win” for Americans abroad in relation to financial reporting is uncontestable on practical, morale lifting and “favorable precedent for similar future cases” grounds. However, the closeness of the vote and the very clear distinction drawn between willful and non-willful violations illustrate the lack of clarity in the regulatory framework for FBARs (a problem also present in other financial reporting requirements) and the inherent limitations of leaving the resolution of complex issues of law and policy in this field to the judiciary.
As discussed below in Why? Justice Gorsuch’s majority opinion is notable in its discussion of “fair notice” to taxpayers and the unrealistic assertion that FBAR enforcement policy combats terrorism and drug money laundering. However, developing case law and IRS practice, as confirmed by practitioners, suggest that the immediate effect of the favorable decision in Bittner will, except for Mr. Bittner, be limited given the propensity of the IRS to systematically categorize violations as “willful”. It is a reasonable assumption that the IRS will persist in this practice despite, or perhaps because of, Bittner.
In this context, it is important to note what Bittner did not do:
- Provide guidance on how to distinguish willful from non-willful violations. This essential distinction is at the core of the Bedrosian case for which a petition for a writ of certiorari for Supreme Court review is pending. An analysis of the Bedrosian case will therefore be the primary focus of the next (3rd installment) of the present financial series.
- Analyze how IRS practice in levying draconian fines serves to deter violations and promote voluntary compliance. This question was touched upon in several of the submitted briefs. The Court’s failure to address it is not surprising as it is an issue not evidently within the Court’s competence and better left to Congressional oversight and independent agency (GAO) scrutiny. AARO, in its advocacy efforts, will attempt to influence these bodies on this question.
- Examine, let alone propose changing threshold limits for FBAR disclosures or consolidating FBAR with other forms, notably, FATCA. Modifying FBAR regulations to increase thresholds to account for inflation over the past 50 years or reducing the burdens of filers such as AARO members is simply not the job of the Supreme Court. These changes are properly within the purview of Congress, the IRS or Treasury. Implementing such changes is a priority of AARO advocacy.
- Address the fundamental question of the constitutionality of the imposition of high fines for financial reporting violations under the “Excessive Fines Clause” of the Eighth Amendment to the Constitution. The Court’s failure to address this question despite it being placed before it several times is consistent with traditional Supreme Court practice, which attempts to avoid deciding cases on broad issues when more narrow ones, such as interpreting the language used in statutes and regulations, are dispositive. In Toth, this fundamental constitutional question was squarely put. Justice Gorsuch’s rare and well-reasoned dissent to the Court’s denial of the grant of certiorari is therefore noteworthy. Now on to Toth…
Procedural History and Denial of the Petition for Certiorari:
The lawyer engaged by Ms. Toth after her unfortunate self-representation experience in IRS proceedings, brought before the 1st Circuit Court of Appeals based in Boston, contended that the $3.1 million fine with interest levied by the IRS violated the Excessive Fines Clause of the Eighth Amendment to the Constitution.
The legal arguments available to Toth’s lawyers were limited to a broad constitutional attack based on the Amendment’s prohibition of “excessive fines”. Counsel could not contest the levying of a fine of $2.1 million – equal to 50% of the $4.2 million balance of her Swiss bank account plus $1 million in late fees and interest- since, unlike the situation in Bittner, the statutory framework for willful FBAR violations uses the term “account” and clearly lays out the “one-half of the balance of the account” standard. This interpretation was later explicitly accepted by the majority opinion in Bittner.
The restriction of Toth’s legal arguments to a broad “excessive fines” constitutional attack and the inability to contest the 50% rule illustrate the importance of the willful/non-willful distinction. This distinction will be even more fundamental in a post Bittner world. How the IRS drew this distinction in Toth as opposed to Bittner is not readily apparent and this opaqueness ought to be cause for the Court to accept to take up the issue by granting certiorari in Bedrosian, failing which the IRS/Treasury or Congress in its oversight role should provide guidance.
The 1st Circuit sided with the IRS, holding that the Excessive Fines Clause did not apply. It based its decision on the finding that Toth’s penalty was “not tied to any criminal sanction”, served a “remedial” purpose and was not intended to “punish” Toth.
The Supreme Court rejected the petition of certiorari for review of the 1st Circuit’s decision, which means that Ms. Toth has no further recourse and will be required to pay the full assessment.
In rendering a decision whether to grant or deny certiorari the Court very seldomly provides reasons for its decision. Likewise, dissents, as Justice Gorsuch’s in Toth, are rarely written.
His dissent is therefore worthy of analysis for it sheds light into Justice Gorsuch’s belief that the fines imposed by the IRS are examples of administrative overreach, as is apparent in his majority opinion in Bittner. His dissent may be a harbinger of future decisions on excessive fines cases beyond the narrow confines of financial reporting for foreign bank accounts.
Justice Gorsuch attacks the reasoning of the 1st Circuit contending that it was inconsistent with Supreme Court precedents on “excessive fines”, the history of the Eighth Amendment clause and logic. He argues that the fines in Toth were in no way ‘remedial’ because they were not calculated with reference to any real losses or expenses incurred by the government. Rather, they were meant to punish and through this punishment deter others. Punishment, however is properly the province of criminal law and likely prohibited by the Excessive Fines Clause. He also asserts, as he would later intimate in Bittner, that the real purpose sought by the IRS was to raise revenue, a purpose also inconsistent with the Excessive Fines Clause.
The denial of certiorari in Toth was generally expected. Justice Gorsuch’s dissent, however, was not. The Court’s failure to seize the opportunity to examine whether IRS practice in imposing fines in the financial reporting field is consistent with the Eighth Amendment’s Excessive Fines Clause may be a disappointment, as is surely was for Ms. Toth. However, Justice Gorsuch’s strong dissent, combined with indications that Justice Jackson and several lower courts may share his concerns, together with scholarly research on the history of the Excessive Fines Clause, provide hope that the issue may be revisited in the future. For my part, I do not believe that the Court will consider this question in the near future and doubt that when they do it will be on the narrow issue of financial reporting for overseas accounts. I am persuaded, however, that the increasing imposition of fines in general, and in particular on low income persons in the US, will at some point lead the Court to frontally examine the constitutionality of many penalties levied by local, state and federal governments.
To hasten that day, AARO will continue to orient its advocacy in Congress concerning financial reporting for Americans abroad to include analogies to the broader problem of government fines in the US using a “we (Americans abroad) are the canary in the mineshaft” argument. We will also continue to liaison with practitioners and researchers on their legal advocacy in this field.
The procedural history of Bittner (summarized in this series’ first installment in the News and Views of November 8, 2022) is now largely only of historical interest. Toth’s journey through IRS proceedings and the 1st Circuit was noted above in What?
The Where question of greater interest for AARO advocacy for its possible influence on the Court, lower courts, Congress, Treasury/IRS and public opinion is the location of the foreign accounts. Toth’s single large account was held in Switzerland. Bittner, in addition to his accounts in his “home country” of Romania, had opened several accounts in Switzerland and Liechtenstein.
The location of Bittner’s non-Romanian accounts was apparently of some importance for the Court’s dissenters as this detail figures prominently in the first sentence of the dissent, authored by Justice Barrett. Moreover, the dissent reinforced the negative connotations in the public mind that accompany Swiss (and Liechtenstein) bank accounts by quoting the finding of the 5th Circuit Court of Appeals that Bittner had ‘concealed his earnings in ‘numbered accounts’.
Given the IRS’s categorization of Bittner’s oversights in filing as “non-willful” the accounts location or their characterization as ‘numbered’ ought to be irrelevant. Toth’s Swiss bank account may have been judged less unsavory given the motivation of her father to find a safe ‘haven’ based on his formative experience. Nevertheless, this did not prevent the IRS from successfully categorizing her violations as “willful’.
This less than subtle use of innuendo by justices of the Supreme Court is systematic of a general perception of foreign account holders (particularly ‘numbered” in iconic Switzerland) and cannot be ignored by lawyers arguing cases on behalf of their clients nor by AARO and others in their broader advocacy with Congress, executive agencies and the public. AARO’s position in favor of a “home country” exception is useful in countering such thinly veiled attempts to systematically present holders of “foreign” accounts in a negative light.
Both Bittner and Toth’s FBAR violations occurred over a decade ago, during the period 2007-11 for Bittner and pre-2010 for Toth. This fact’s significance is beyond simply showing that the wheels of justice roll slowly.
The obligation to file FBARs dates from 1970. However, as the Bittner majority opinion notes, in citing the Center for Taxpayer Rights’ Amicus brief prepared by Zhanna Ziering, even 40 years later many tax professionals are not even aware of FBAR reporting requirements, let alone ordinary taxpayers resident overseas, including many readers of this analysis.
It is only in recent years that knowledge of financial reporting requirements such as FBAR and FATCA became more widespread amongst Americans abroad. It is, however, a natural tendency of enforcement, and the IRS is no exception to this rule, to judge ‘compliance’ and impose accompanying sanctions through the prism of today’s perceptions.
Consequently, individuals need to inform themselves of their obligations as they are perceived in today’s practice rather than of years past. This will in many cases necessitate securing competent legal counsel if attempting to voluntarily comply, file or amend retroactively, or when notified of IRS or other governmental agency proceedings.
As outlined above in the Background section, Justice Gorsuch’s majority opinion was exceptional in its acknowledgement of Americans’ abroad singular condition and his frankness in addressing three points that go to the heart of the enforcement of financial reporting requirements such as FBAR.
Recognition of who (Americans abroad) are:
From the outset of his opinion, Justice Gorsuch recognizes that the issue before the Court, while of general application in theory, were, in practice, of particular importance to immigrants holding accounts abroad and “Americans who make their lives outside their country.”
This statement would appear to most of us to be self-evident. For many of our compatriots, including those working in government, this apparently simple proposition may not be obvious. Often, the singularity of our existence and the burdens imposed by constraints such as the filing of FBAR, FATCA and other forms are not acknowledged or a subject of concern or understanding. Justice Gorsuch’s singling out of two groups – immigrants and Americans abroad – tracks the emphasis on these two groups made in the Amicus brief of the Center for Taxpayer Rights. Mr. Bittner’s and Ms. Toth’s personal situations illustrate how these two groups may overlap as both were immigrants and US citizens who resided both in the US and outside the US in their country of origin.
Americans abroad and the organizations that represent them struggle with selecting the best way to characterize ourselves: “Expats?” “Residents abroad” or “Americans overseas?” Do we work or live abroad? Justice Gorsuch’s phrase “Americans who make their lives outside the country”, best sums up our experience. It may perhaps be too lengthy to use in many contexts but is a most appropriate and well-thought-out designation which conveys a badly needed positive tone to our shared experience.
The Bittner majority opinion is partially based on an analysis of what the government represented to the public concerning the potential assessment of penalties for FBAR non-compliance. These representations included Treasury notices of proposed rulemaking warnings, IRS Letters and ‘Fact Sheets’.
The opinion concludes that these representations were in direct contradiction to the Government’s argument in favor of a “per account” interpretation of the penalty provision of the law and regulations. Justice Gorsuch is most frank in his criticism of the lack of ‘fair notice’ stating that ‘when the government speaks out of both sides of the mouth, no one should be surprised if the latest utterance isn’t the most convincing one’.
The Court’s concern with “fair notice” in Bittner may, and ought to have, far broader application. Americans abroad suffer from the absence of guidance upon which they ought to be able to rely for a host of complex matters including financial reporting, taxation and the particularly harsh sanctions of passport revocation or non-renewal.
AARO will use the “fair notice” ground in Bittner to reinforce its advocacy for greater guidance on these complex questions, and will attempt to expand this holding to demands for greater due process protections in notification of sanctions such as passport revocation or non-renewals.
Purpose of FBAR Financial Reporting – Anti-terrorism, organized crime – a realistic perspective
As gleaned from its legislative history and wording of the law, the essential purpose of the Bank Secrecy Act of 1970, which provides the legislative framework for FBAR reporting, was in the words of the Bittner dissent to “crack down on criminals and terrorists”. All Americans, and most definitely Americans abroad and AARO members, strongly favor such an objective. Nevertheless, the debates over proposed changes to legislation and regulations as well as enforcement practice in the field have tended to be excessively framed in anti-terrorism and drug crime terms, obscuring the need to objectively examine the real-world successes or failures of a given provision or enforcement procedure in the fight against terrorism and organized crime. Moreover, laws ought not to be enacted without considering the costs, including burdens imposed on the ordinary person.
The Bittner majority opinion makes these points in relation to FBAR enforcement and deflates the dissent’s exaggerated reliance on the need to fight terrorism and drug trafficking in interpreting the FBAR statute in stating “Are we to imagine that drug cartels and terrorists often make innocent mistakes when filing FBAR’s?”
Such statements open a window for AARO advocacy to make the case that certain aspects of financing reporting as well as taxation may not be ‘fit for purpose’ and unnecessarily burdensome for the average good faith filer.
Revenue Raising (Toth dissent)
In his dissent in Toth, Justice Gorsuch appears to accept that the real rationale for the imposition of extremely high FBAR fines may be revenue raising by the IRS rather than to recoup losses or expenses. While not as explicit in Bittner, this theme seems to underlie portions of the opinion.
Relevance to AAROs Advocacy efforts
An analysis of how the issues raised in Bittner might impact AARO’s advocacy efforts was made in our first installment of this series which appeared in the November 8, 2022 News and Views issue. References to the inter-relation of the Bittner decision and Justice Gorsuch’s dissent in Toth have been interspersed throughout the text of this article. We will therefore limit discussion of these potential interconnections between the cases and AARO Advocacy to the following bullet point summary:
AARO will continue to:
- Advocate for a consolidation of FBAR and FATCA reporting requirements into one form, the raising of the threshold for filing a consolidated form to $80,000, in line with inflation since 1970
- Support a “home country” exemption for FBAR filing
- Provide data and analysis and survey results related to questions at issue in Bittner and Toth to independent agencies, notably the General Accountability office (GAO), academics and professional organizations
- Closely follow future case law developments such as Bedrosian to ensure that AARO members are fully informed of the issues involved and the potential consequences for them
- Liaise with professional organizations and assist and participate, as appropriate, in their legal advocacy in the field
- Educate AARO members (and future members) on their financial obligations and legal and regulatory developments by hosting seminars such as the April 25, 2023 financial seminar led by Zhanna Ziering with the participation of Jay Weill, moderated by Fred Einbinder, VP Advocacy
- Meet with Congresspersons, government agencies and private foundations and institutions during Overseas Americans Week to be held the week of May 8, 2023
The Perspectives of the Practitioners:
From Zhanna Ziering
Zhanna, a lawyer in the New York office of the Moore Tax Group who will, together with Jay Weill, lead AARO’s Financial Reporting Seminar on April 25, 2023, is a nationally recognized FBAR expert and the co-author of Bloomberg’s BNA Tax Management Portfolio, Report of Foreign Bank and Financial Accounts. She was co-counsel for the Center for Taxpayers Rights and co-author of the Amicus brief failed on the Center’s behalf in the Bittner case. The brief was cited by and clearly influenced Justice Gorsuch’s majority opinion.
She states: “The government has had a long and overwhelming record of victories in FBAR enforcement and began taking an overly-aggressive and unfair approach to administering the FBAR penalties. We hope that this is the first step in curtailing penalties that are not necessary to administer our tax laws”
From Jay Weill
Jay is an exceptionally experienced civil and criminal tax controversy lawyer having served in the Tax Division of the US Department of Justice for 35 years, including 25 years as Chief of the Division in the US Attorney’s Office in San Francisco. Jay has been in private practice for the past 15 years as a partner in the San Francisco law firm, Sideman & Bancroft.
He states: “I have not encountered a single case in my practice where the IRS has not alleged willfulness of their assessment. While Bittner is a positive development its real-world application will therefore probably be minimal. What is needed is for the Court to provide guidance as to definition of “willfulness’ at issue in the Bedrosian case.”
 598 U.S. __ (2023) (page number not yet available-at time of publication).