PAYING UP TO UNCLE SAM: FBAR PENALTIES, THE EIGHTH AMENDMENT’S EXCESSIVE FINES CLAUSE, AND A NEW CIRCUIT SPLIT

Authors

• Christopher J. Nasta

Abstract

The Bank Secrecy Act requires those with foreign financial accounts to file a Report of Foreign Bank and Financial Accounts (FBAR) with the United States Department of the Treasury’s Financial Crimes Enforcement Network (FinCEN). Those who do not file are subject to a variety of criminal and civil penalties.

The Eighth Amendment of the United States Constitution provides that excessive fines cannot be levied by the American government against individuals. How does this apply to those with foreign financial accounts who willfully choose not to file the required reporting forms with the United States government? A circuit split has arisen concerning whether willful, civil FBAR penalties fall under the Eighth Amendment as “fines.” The United States Court of Appeals for the First Circuit has decided that these specific FBAR penalties are not “fines” and, as such, are not subject to the Eighth Amendment, while the United States Court of Appeals for the Eleventh Circuit has found that willful, civil FBAR penalties are in fact “fines” that are subject to the Eighth Amendment.

This Note will provide an in-depth look at FBAR generally and also offer a detailed analysis of the circuit split at issue. Furthermore, this Note will argue that the Eleventh Circuit’s position on the matter is correct and why willful, civil FBAR penalties should fall within the scope of the  Eighth Amendment. It will also suggest additional factors to assist courts in determining whether FBAR penalties are excessive. Lastly, the impact of the Eleventh Circuit’s decision and larger circuit split will be discussed.

Recommended Citation

Christopher J. Nasta, PAYING UP TO UNCLE SAM: FBAR PENALTIES, THE EIGHTH AMENDMENT’S EXCESSIVE FINES CLAUSE, AND A NEW CIRCUIT SPLIT, 48 W. New Eng. L. Rev. 144 (2026), https://digitalcommons.wne.edu/lawreview/vol48/iss1/7