FBAR Direct prepares and files your FBAR (FinCEN Form 114) on your behalf. You are responsible for reviewing all information for accuracy before submission to FinCEN. This article is for informational purposes only and does not constitute tax, legal, or financial advice.

FBAR Penalty Per Account or Per Form? How Bittner v. US Changed Everything

For years, taxpayers and the IRS fought over one question: does a non-willful FBAR penalty apply once per unreported account, or once per unfiled form? The answer matters. Someone with ten foreign accounts could face $645,450 in penalties — or just $64,545. However, in February 2023, the Supreme Court settled this in Bittner v. United States (598 U.S. 85). The court ruled 5-4 that non-willful FBAR penalties apply per form, not per account. This decision changed how the IRS calculates FBAR penalties for taxpayers with multiple foreign financial accounts.

This guide covers the circuit split, the Supreme Court's reasoning, and what the ruling means for anyone who failed to file an FBAR. For a broader overview, see our FBAR penalties guide.

What Is the Non-Willful FBAR Penalty?

The non-willful FBAR penalty is a fine of up to $16,117 per violation (2025 amount) for failing to file FinCEN Form 114. This civil penalty applies when you did not know about the FBAR filing requirement or made an honest mistake. The IRS adjusts this amount annually for inflation. If you hid accounts on purpose, that falls under willful penalties — a much harsher category.

The Bank Secrecy Act says every US person with a financial interest in or authority over foreign financial accounts must file the FBAR. You must file if your accounts top $10,000 in total value at any time during the calendar year. The due date is April 15, with an automatic extension to October 15. New to this? Our first-time filer guide covers the basics.

Under 31 USC 5321(a)(5)(A), the IRS can fine anyone who breaks FBAR reporting rules:

Non-willful penalties: Up to $12,909 per violation under 31 USC 5321(a)(5)(B)(i) ($16,117 for 2025 after inflation). These apply when you did not file on purpose.
Willful penalties: The greater of $100,000 or 50% of the account balance per violation under 31 USC 5321(a)(5)(C). These apply when you knew about the rule and ignored it.

The big question: what counts as one "violation"? The text of FBAR law does not say. That gap in the definition of FBAR violations led to a circuit split that lasted years. For a detailed look, see willful vs. non-willful FBAR penalties.

What Was the Circuit Split on FBAR Penalty Per Account or Per Form?

Before the Supreme Court stepped in, federal courts split on whether a non-willful FBAR violation meant one penalty per account or one penalty per form. Your penalty depended on where you lived — a zip code lottery with major financial stakes.

The Per-Account Approach (5th Circuit)

In United States v. Bittner, the Fifth Circuit said each unreported foreign account and financial interest is a separate violation. It did not matter what type of account — bank, brokerage, or pension — every gap triggered a penalty. Miss ten accounts for one year? That is ten violations and fines up to $129,090. The IRS used this view nationwide.

The Per-Report Approach (9th Circuit and Others)

In United States v. Boyd, the Ninth Circuit took the other side. Missing one annual FBAR is one violation per year, regardless of the number of accounts you left off. Boyd v. United States said the law punishes the failure to file a report, not the failure to list each account. Kimble v. United States agreed.

Consequently, the same conduct led to penalties ten times higher in the Fifth Circuit than in the Ninth. The Supreme Court took the case to end the split.

What Did the Supreme Court Decide in Bittner v. United States?

The Supreme Court ruled in Bittner v. United States (598 U.S. 85, 2023) that a non-willful FBAR violation means one penalty per report (per year) — not one per account. Justice Barrett wrote the 5-4 majority opinion on February 28, 2023. This ruling ended the circuit split and gave major relief to taxpayers with FBAR and foreign account issues.

The Facts

Alexandru Bittner, a dual citizen of the United States and Romania, held foreign accounts in Romania, Switzerland, and Liechtenstein. Over five years (2007-2011), he failed to file FBARs for roughly 25 to 41 accounts.

The IRS assessed non-willful penalties on a per-account basis: 272 total violations, totaling about $2.72 million. Under the per-report approach, the penalty would have been five violations (one per year), totaling about $50,000.

The Majority Opinion

Justice Barrett held that a non-willful FBAR violation is the failure to file a timely and accurate annual report — not the failure to report each account within that report. The court examined 31 USC 5314, which requires a person to file "a report" of foreign accounts. The statute imposes one reporting obligation per year. One failure to meet it is one violation.

Specifically, Barrett explained that treating each account as a separate non-willful violation would create penalties far exceeding willful penalties in most cases. That result would undermine the structure Congress built. In other words, the holding applies to non-willful penalties only.

The Dissent

Justice Jackson, joined by three justices, dissented. The dissent argued that each unreported account is a separate violation because the statute requires reporting of "each" account. Under this reading, the IRS correctly calculated penalties on a per-account basis.

How Much Is the FBAR Penalty Per Account vs. Per Report?

The difference between per-account and per-report FBAR penalty calculations is dramatic. Consider a taxpayer who held ten foreign accounts and did not file the Report of Foreign Bank and Financial Accounts (FBAR) for five years. Under one method, the penalty destroys their finances. Under the other, it stays manageable.

Before Bittner (Per-Account)

Factor	Calculation
Unreported accounts per year	10
Years of non-filing	5
Total violations	10 x 5 = 50
Penalty per violation	$12,909
Total maximum penalty	$645,450

Under the per-account method, a person could face up to $645,450 in non-willful FBAR penalties regardless of account balances. Even modest accounts drove the total higher.

After Bittner (Per-Report)

Factor	Calculation
Unfiled reports per year	1
Years of non-filing	5
Total violations	1 x 5 = 5
Penalty per violation	$12,909
Total maximum penalty	$64,545

In contrast, under the per-report method upheld in Bittner, the maximum penalty drops to $64,545 — about one-tenth of the per-account total. Using the 2025 inflation-adjusted amount of $16,117 per violation, the per-report maximum would be $80,585 for five years.

Additionally, the gap grows with more accounts. A taxpayer with 50 accounts over five years faced $3.2 million in potential per-account penalties. After Bittner, that same person faces $64,545.

What Bittner Means for Current FBAR Penalty Assessments

Bittner gives taxpayers with pending or past non-willful FBAR penalty assessments grounds to reduce what they owe. Non-willful FBAR penalties are now capped at one per year. Courts now apply the per-report standard, and the IRS has updated its processes to match.

Pending cases: Taxpayers who had penalties assessed on a per-account basis can seek reassessment. Courts have applied Bittner retroactively.

Refund claims: Taxpayers who already paid per-account penalties may seek refunds for the excess. The statute of limitations for FBAR refund claims varies, so consult a tax professional promptly.

IRS audit posture: The maximum non-willful penalty for any year now caps at $16,117 no matter what foreign accounts you hold.

Voluntary disclosure: Bittner strengthens the case for resolving delinquent FBARs through voluntary disclosure before the IRS contacts you.

How Has the IRS Responded to Bittner?

After the Bittner ruling, the IRS changed how it calculates and pursues non-willful FBAR penalties. The agency now uses the per-report method for all new assessments. Nevertheless, the IRS has shown more interest in proving violations are willful, since willful penalties remain tied to each account.

Penalty calculations: The IRS now computes non-willful FBAR penalties as one violation per year. Each unfiled report is one violation.
Willful classification scrutiny: The IRS has greater incentive to classify violations as willful after Bittner. A willful FBAR penalty can reach 50% of the account balance per year — Bittner did not change that.
Criminal referrals: The IRS may increase criminal referrals in cases with FBAR issues involving large balances or badges of fraud. Criminal penalties for willful violations include fines up to $250,000 and imprisonment up to five years under 31 USC 5322.

How Do Willful vs. Non-Willful FBAR Penalties Compare After Bittner?

Bittner changed non-willful penalties but left willful FBAR penalties untouched. If the IRS determines your failure to file was willful, the penalty still applies per account and can reach 50% of the account balance.

Factor	Non-Willful (Post-Bittner)	Willful
Penalty unit	Per report (per year)	Per account, per year
Maximum penalty	$16,117 per year (2025)	Greater of $100,000 or 50% of the account balance
Intent required	No — reasonable cause defense available	Knowing or reckless disregard
Bittner impact	Reduced from per-account to per-report	Unchanged
Criminal exposure	None	Fines up to $250,000, up to 5 years imprisonment

A willful penalty on an account with a $500,000 balance could reach $250,000 for a single year. The non-willful cap is just $16,117. For more details, see willful vs. non-willful FBAR penalties.

How to Reduce Your FBAR Penalty Exposure

If you have unfiled or late FBARs, you can reduce or avoid your penalty exposure. For accounts the IRS has not yet flagged, compliance programs offer the best path forward. Therefore, filing before the IRS contacts you is the most important step you can take. Follow these steps to come into compliance:

Gather your foreign account statements — collect bank statements, brokerage records, and pension documents for each year you missed filing. You need the maximum value of each account during the calendar year.
Choose a compliance program — pick the IRS program that fits your situation (see options below). A tax professional can help you decide.
File your delinquent FBARs — submit the Report of Foreign Bank and Financial Accounts through the BSA filing system before the IRS contacts you.
Document your reasonable cause — if you claim reasonable cause, prepare a written statement explaining why you missed the filing deadline.

Reasonable cause defense: For non-willful violations, you may avoid the penalty entirely by showing reasonable cause under 31 USC 5321(a)(5)(B)(ii). You must prove the failure resulted from reasonable cause and not willful neglect.

Delinquent FBAR Submission Procedures: If you reported all income and paid all tax on your tax return, the IRS Delinquent FBAR Submission Procedures may let you file late FBARs without penalties.

Streamlined Filing Compliance Procedures: The IRS Streamlined Filing Compliance Procedures require filing the last three years of delinquent tax returns and six years of delinquent FBARs. The offshore penalty is 5% of the highest aggregate value of foreign financial accounts.

Key Takeaways on FBAR Penalty Per Account or Per Form

Here are the key takeaways on whether the FBAR penalty applies per account or per form after the Bittner ruling. These points cover what changed, what stayed the same, and what you should do next.

The IRS now assesses non-willful FBAR penalties per form, not per account, after Bittner v. United States
One "violation" means one unfiled report per year
The per-report rule cut maximum penalties by 90% or more for taxpayers with multiple accounts
Willful FBAR penalties remain per account — Bittner did not change them
The IRS may push willful classifications harder after the ruling
Filing delinquent FBARs before the IRS contacts you is the best way to reduce penalties

Frequently Asked Questions About FBAR Penalties

These frequently asked questions about FBAR penalties cover the Bittner ruling, the per-account vs. per-form distinction, and how to reduce your penalty exposure. Each answer reflects current law as of FBAR filing season 2026.

Are FBAR penalties assessed per account or per form?

After the Supreme Court's ruling in Bittner v. United States (598 U.S. 85, 2023), non-willful FBAR penalties apply per form not per account. Each unfiled annual FBAR is one violation. A taxpayer who missed filing for one year faces a maximum civil penalty of $16,117 (2025 amount) no matter the number of foreign accounts they hold.

What did the Supreme Court decide in Bittner v. United States?

The court ruled 5-4 in February 2023 that a non-willful FBAR "violation" under 31 USC 5321(a)(5)(B) is the failure to file a single annual report — not the failure to report each account. Justice Barrett wrote the majority opinion, resolving the circuit split between the Fifth Circuit (per-account) and the Ninth Circuit in Boyd v. United States (per-report).

Does Bittner apply to willful FBAR penalties?

No. Willful FBAR penalties under 31 USC 5321(a)(5)(C) equal the greater of $100,000 or 50% of the account balance. They remain tied to each account. Willful violations also carry criminal penalties including fines up to $250,000 under 31 USC 5322.

Can I get a refund if the IRS assessed per-account penalties before Bittner?

You may have grounds for a refund. Taxpayers who paid non-willful penalties on a per-account basis may recover the excess amount. The statute of limitations for refund claims applies, so seek legal advice from a tax attorney promptly.

What was the circuit split before Bittner?

The Fifth Circuit held each unreported account was a separate violation (per-account penalties). The Ninth Circuit in Boyd v. United States held that one unfiled FBAR was one violation per year (per-report penalties). Kimble v. United States followed the per-report approach. The geographic split meant identical conduct produced vastly different penalty amounts depending on whether you lived in a per-account or per-form jurisdiction.

How much can non-willful FBAR penalties be after Bittner?

The maximum is $16,117 per year (2025 inflation-adjusted; base $12,909 per 31 USC 5321). This cap applies no matter the number of accounts you hold. Over five years of non-filing, the maximum penalty is about $80,585.

What should I do if I have unfiled FBARs?

File before the IRS contacts you. Options include the Delinquent FBAR Submission Procedures (if you reported all income and paid all tax on your tax return), the Streamlined Filing Compliance Procedures (5% offshore penalty for domestic filers), and reasonable cause defenses. For standard FBAR filing, FBAR Direct prepares and files your FinCEN Form 114 through the BSA filing system on your behalf.

Is the IRS more likely to pursue willful penalties after Bittner?

Tax professionals expect the IRS to pursue willful classifications more aggressively now that non-willful penalties cap at one per year. A willful FBAR penalty can reach 50% of the account balance. As a result, coming into compliance before the IRS contacts you reduces the risk of a willful determination.

Let FBAR Direct Handle Your Filing

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Tax regulations change frequently. Always verify current requirements at IRS.gov or FinCEN.gov. For advice specific to your situation, consult a qualified tax professional. This article is current as of April 16, 2026.