Page:Bittner v. United States.pdf/12

8 said that a person may invoke the reasonable cause exception only on a showing of per-account accuracy. But the one thing Congress did not say is that the government may impose nonwillful penalties on a per-account basis. Conspicuously, the one place in the statute where the government needs per-account language to appear is the one place it does not. In the end, the government’s per-account theory faces not just a single expressio unius challenge but two.

The dissent founders on the same shoals. It suggests that the “pattern” of account-specific language in the willful penalty provision and the reasonable cause exception “connot[es]” that the nonwillful penalty provision must operate on a per-account basis. , (opinion of ). But (again), just because two provisions in the law are similar does not mean we may ignore differences found in a third. Seeking a way around the problem, the dissent points to the fact that even a single qualifying foreign bank account “triggers” the duty to file a report, and the fact that a compliant report must contain a “list of information” about bank addresses and the like. These features of the law, the dissent says, “underscor[e]” that nonwillful violations accrue per account. But that simply does not follow. The fact that a person has a duty to file a report, or provide certain information in a report, does not tell us whether penalties for nonwillful violations accrue per report or multiply per account without regard to an individual’s net worth or foreign holdings.