BEDROSIAN v. THE UNITED STATES OF AMERICA, DEPARTMENT OF THE TREASURY, INTERNAL REVENUE SERVICE
MEMORANDUM AND/OR OPINION. SIGNED BY HONORABLE MICHAEL M. BAYLSON ON 9/5/2017. 9/5/2017 ENTERED AND COPIES E-MAILED.(kp, )
IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
THE UNITED STATES OF AMERICA,
DEPARTMENT OF THE TREASURY,
INTERNAL REVENUE SERVICE
September 5, 2017
MEMORANDUM RE: MOTION IN LIMINE
Presently before the Court in this tax penalty action is Defendant the United States’
motion in limine to preclude evidence concerning the “procedures, actions, analyses, or
viewpoints of the Internal Revenue Service and its personnel at the administrative level
regarding willfulness.” (ECF 43, Gov’t Mot. at 1.) Plaintiff Arthur Bedrosian opposes the
motion on the grounds that the IRS administrative findings and related testimony are relevant to
the Court’s determination of whether his failure to file an accurate Report of Foreign Bank and
Financial Accounts (“FBAR”) in 2007 was willful. (ECF 46, Bedrosian Opp’n.) For the reasons
discussed below, Defendant’s motion is granted.
Although the Third Circuit has not ruled on what standard of review applies to a
determination of the validity of an IRS penalty under 31 U.S.C. § 5321, those courts that have
considered the question have found the correct standard to be de novo. See United States v.
Williams, No. 09-437, 2010 WL 3473311, at *1 (E.D. Va. Sept. 1, 2010), rev’d on other
grounds, United States v. Williams, 489 F. App’x 655 (4th Cir. 2012) (looking to enforcement
actions brought by the government in other contexts which require a de novo review, as well as
the fact that Section 5321 provides for no adjudicatory hearing before an FBAR penalty is
assessed, to conclude that de novo review is appropriate); United States v. McBride, 908 F. Supp.
2d 1186, 1201 (D. Utah 2012) (applying de novo standard to whether underlying penalty was
The government bears the burden of proving each element of its claim for a civil FBAR
penalty by a preponderance of the evidence, including the key question here of whether an
individual’s failure to report was “willful.” Williams, 2010 WL 3473311, at *1; McBride, 908 F.
Supp. 2d at 1201-02 (explaining that “[a]s with [g]overnment penalty enforcement and collection
cases generally, absent a statute that prescribes the burden of proof, imposition of a higher
burden of proof is warranted only where ‘particularly important individual interests or rights,’
are at stake”) (quoting Herman & MacLean v. Huddleston, 459 U.S. 375, 389 (1983)); United
States v. Bohanec, No. 15-4347, __F. Supp. 3d.__, 2016 WL 7167860, at *6 (C.D. Cal. Dec. 8,
2016) (holding that because “[t]he monetary sanctions at issue [in an FBAR civil penalty action]
do not rise to the level of ‘particularly important individual interest or rights,’ . . . the
preponderance of the evidence standard applies”).
The government cites significant case law supporting its position that “[e]vidence
regarding the thoughts, analysis, application of facts to law, and determinations at the
administrative level with respect to willfulness have no place in the Court’s de novo review of
whether Bedrosian willfully failed to comply with the FBAR requirements.” (Gov’t Mot. at 6.)
One especially compelling case is United States v. Farley, 11 F.3d 1385 (7th Cir. 1993), in which
the court reviewed the district court’s dismissal of a government action against an individual for
violation of one of the Clayton Act’s reporting requirements. The government had refused to
produce certain internal Federal Trade Commission (“FTC”) documents from the underlying
administrative investigation in contravention to the district court’s order, citing work product and
deliberative process privileges. Id. at 1387. The district court dismissed the case with prejudice
due to the government’s failure to abide the court’s order.
The Seventh Circuit first found that the documents were within the scope of both
privileges and that the district court had therefore erred in ordering the documents’ disclosure
without assessing the defendant’s need for them. Id. at 1389-90. Second, and pertinent to this
case, the court declined to remand for such a balancing analysis because the documents were
legally irrelevant to the issue presented by the government’s complaint. Specifically, the court
held that the FTC documents were not relevant to the defendant’s claim that his stock purchase
fell within a given exemption to the federal reporting requirement because “[t]his defense
requires only that the district court interpret the statutory exemption and determine whether [the
defendant’s] purchases were within the scope of that exemption.” Id. at 1390.
Similarly, here Bedrosian cannot show that documents relating to the underlying IRS
investigation and penalty assessment are relevant to the only question that remains in this case—
whether he acted willfully when he failed to report one of his foreign accounts on his 2007
FBAR. As in Farley, that determination solely requires our consideration of Section 5321 and
evidence pertaining to Bedrosian’s state of mind in failing to accurately file his 2007 FBAR.
We further find instructive cases in which courts conduct de novo reviews of tax
assessments. In Katz v. United States, No. 91-5623, 1992 WL 103006 (E.D. Pa. May 6, 1992),
the court granted the government’s motion to preclude the defendant from introducing evidence
at trial pertaining to the IRS’s investigation because “[i]t is not for [the] court to look behind an
assessment to evaluate the procedure and evidence used in making the assessment.” Id. at *1
(explaining that the de novo standard of review meant that there was no need for “any ancillary
determination as to the procedures employed by the government in levying their assessment”);
see also Rupert v. United States, 225 F.R.D. 154, 157 (M.D. Pa. 2004) (stating that where the
court must determine the propriety of a tax refund, it “must independently evaluate the
[p]laintiffs’ claim, [rendering] the recommendations of the [IRS] Appeals Officer . . . not
relevant to [the] review”).
Bedrosian, on the other hand, fails to proffer any case law that compels a contrary
conclusion. He first cites S.H. v. State-Operated School District of City of Newark, 336 F.3d
260 (3d Cir. 2003) and Wilkins v. District of Columbia., 571 F. Supp. 2d 163 (D.D.C. 2008) for
the proposition that we must give “due weight” to the underlying administrative proceedings.
(Bedrosian Opp’n at 8.) But those cases deal with the particular circumstance of judicial review
over cases arising under the Individuals with Disabilities Education Act (“IDEA”), which
standard of review has developed in a line of cases specific to that statute. See Bd. of Educ. of
Hendrick Hudson Ctrl. Sch. Dist., Westchester Cty. v. Rowley, 458 U.S. 176, 206 (1982) (“The
fact that § 1415(e) requires that the reviewing court ‘receive the records of the [state]
administrative proceedings’ carries with it the implied requirement that due weight shall be given
to these proceedings.”); Shore Reg’l High Sch. Bd. of Educ. v. P.S., 381 F.3d 194, 199 (3d Cir.
2004). Indeed, Bedrosian points us to no precedent for the application of such a standard outside
of the IDEA context. Because neither the Supreme Court nor any other court discovered by the
undersigned has limited the district court’s de novo review of the imposition of an FBAR civil
penalty in such a way, these cases are inapposite to the instant inquiry.
Bedrosian additionally argues that the fact that Section 5321 did not afford him an
adjudicatory hearing sways in favor of admitting evidence relating to the IRS’s administrative
findings because he did not have “an adequate opportunity to be heard at the administrative level
before the willful FBAR penalty was imposed.” (Bedrosian Opp’n at 9.) We disagree.
Bedrosian has the chance before this Court to put forth any relevant, admissible evidence of the
only issue left to be adjudicated—his state of mind in not filing an accurate 2007 FBAR. The
IRS’s analysis of Bedrosian’s case, its preliminary conclusions regarding his FBAR violation,
and the viewpoints of its personnel plainly do not go to Bedrosian’s willfulness in failing to list
one of his foreign accounts on his 2007 FBAR.
For the aforementioned reasons, we find that the government is correct in its contention
that evidence concerning the “procedures, actions, analyses, or viewpoints of the Internal
Revenue Service and its personnel at the administrative level regarding willfulness” is not
relevant under FRE 401. (Gov’t Mot. at 1.) Because evidence must be admissible in order to be
relevant under FRE 402, the inquiry ends here and Bedrosian will not be permitted to introduce
such evidence at trial.
O:\CIVIL 15\15-5853 Bedrosian v United States\15cv5853 memo re MIL.docx
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