Page:Bittner v. United States.pdf/13

Rh Widening our view beyond §5314 and §5321, we find other contextual clues pressing against the government’s theory. Consider what the government itself has told the public about the BSA. In 2010, the Department of the Treasury issued a notice of proposed rulemaking warning that, under its proposed rules, “[a] person who is required to file an FBAR and fails to properly file may be subject to a civil penalty not to exceed $10,000.” 75 Fed. Reg. 8854 (2010). Elsewhere, the government has told suspected FBAR violators that “[f]or the failure to file … the penalty cannot exceed $10,000.” IRS, Letter 3709, p. 1 (Mar. 2011). Instructions included with the FBAR form have cautioned that “[a] person who is required to file an FBAR and fails to properly file may be subject to a civil penalty not to exceed $10,000.” IRS, Form TD F 90–22.1, p. 8 (Mar. 2011). An IRS “Fact Sheet” has advised that, “[f]or the FBAR, the penalty may be up to $10,000, if the failure to file is non-willful.” IRS, Offshore Income and Filing Information for Taxpayers with Offshore Accounts, FS–2014–7 (June 2014). Ms. Boyd herself received a similarly worded letter alerting her that “ ‘[f]or the failure to file [the FBAR] … the penalty cannot exceed $10,000.’ ” Boyd, 991 F. 3d, at 1085, n. 11 (alterations in original and emphasis deleted).

None of these representations about the law’s operation fits easily with the government’s current theory. In all of these warnings, fact sheets, and instructions, the