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Individual Argues for Reversal of FBAR Penalty Decision

AUG. 28, 2019

Alice Kimble v. United States

DATED AUG. 28, 2019
DOCUMENT ATTRIBUTES
  • Case Name
    Alice Kimble v. United States
  • Court
    United States Court of Appeals for the Federal Circuit
  • Docket
    No. 19-1590
  • Institutional Authors
    Kase & Druker Esqs
  • Subject Area/Tax Topics
  • Jurisdictions
  • Tax Analysts Document Number
    2019-33152
  • Tax Analysts Electronic Citation
    2019 TNTI 169-17
    2019 TNTF 169-16

Alice Kimble v. United States

ALICE KIMBLE,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee.

In The
United States Court of Appeals
For The Federal Circuit

APPEAL FROM THE UNITED STATES COURT OF FEDERAL CLAIMS IN NO. 1:17-cv-00421-SGB, JUDGE SUSAN G. BRADEN.

REPLY BRIEF OF APPELLANT

Paula Schwartz Frome, Esq.
KASE & DRUKER, ESQS.
1325 Franklin Avenue, Suite 225
Garden City, New York 11530
(516) 746-4300
Counsel for Appellant

Form 9. Certificate of Interest


TABLE OF CONTENTS

CERTIFICATE OF INTEREST

TABLE OF CONTENTS

TABLE OF AUTHORITIES

REPLY BRIEF FOR APPELLANT

Preliminary Statement

ARGUMENT

POINT I

THE WILLFULNESS PENALTY MUST BE LIMITED TO $100,000 UNDER IRS REGULATION

POINT II

THE COURT ERRONEOUSLY DETERMINED THAT MRS. KIMBLE ACTED WILLFULLY

POINT III

THE IRS ABUSED ITS DISCRETION IN FAILING TO MINIMIZE THE PENALTY

POINT IV

THE IMPOSITION OF THE MAXIMUM PENALTY CONSTITUTED AN EXCESSIVE FINE UNDER THE EIGHTH AMENDMENT

CONCLUSION

TABLE OF AUTHORITIES

CASES

Austin v. United States, 509 U.S. 602 (1993)

Baird v. General Services Administration, 285 Fed. Appx. 746 (Fed. Cir. 2008)

Bedrosian v. United States, 912 F.3d 144 (3d Cir. 2018)

Bedrosian v. United States, 2017 WL 4946433 (E.D. Pa. September 19, 2017)

Children's Hospital of the King's Daughters, Inc. v. Azar, 896 F.3d 615 (4th Cir. 2018)

Clark v. Rameker, 134 S. Ct. 2242 (2014)

East Bay Sanctuary Covenant v. Trump, 909 F.3d 1219 (9th Cir. 2018)

Freidus v. First National Bank of Council Bluffs, 928 F.2d 793 (8th Cir. 1991)

Godfrey v. United States, 748 F.2d 1568 (Fed. Cir. 1984)

Helvering v. Mitchell, 303 U.S. 391 (1938)

Impax Laboratories, Inc. v. Lannett Holdings, Inc., 893 F.3d 1372 (Fed. Cir. 2018)

Jafarzadeh v. Nielsen, 321 F. Supp. 3d 19 (D.D.C. 2018)

Lebron v. National Railroad Passenger Corp., 513 U.S. 374 (1995)

Mid Continent Nail Corp. v. United States, 846 F.3d 1364 (Fed. Cir. 2017)

Moore v. United States, 2015 WL 1510007 (W.D. Wash. April 1, 2015)

National Association of Manufacturers v. Department of Defense, 138 S. Ct. 617, 2018 WL 491526 (January 22, 2018)

Norman v. United States, 38 Fed. Cl. 139 (2018)

Stone Basket Innovations LLC v. Cook Medical LLC, 892 F.3d 1175 (Fed. Cir. 2018)

United Dominion Industries, Inc. v. United States, 532 U.S. 822

United States v. Colliot, 2018 W.L. 2271381 (W.D. Tx. May 16, 2018)

United States v. Garrity, 2019 W.L. 1004584 (D. Ct. February 28, 2019)

United States v. Horowitz, 2019 W.L. 265107 (D. Md. January 18, 2019)

United States v. McBride, 908 F. Supp. 2d 1186 (D. Utah 2012)

United States v. United States Gypsum Co., 333 U.S. 364 (1948)

United States v. Wahdan, 325 F. Supp. 3d 1136 (D. Colo. 2018)

United States v. Williams, 489 Fed. Appx. 655 (4th Cir. 2012)

STATUTES

5 U.S.C. § 5532

5 U.S.C. § 553(b)(A)3

31 U.S.C. § 532112

31 U.S.C. § 5321(a)(5)(A)4, 12

RULES

Fed. R. Evid. 40817

Fed. R. Evid. 408(b)17

REGULATIONS

31 C.F.R. § 1010.8202

31 C.F.R. § 1010.820(g)(2)6


REPLY BRIEF FOR APPELLANT

Preliminary Statement

Alice Kimble appeals from a Judgment of the United States Court of Federal Claims (Braden, J.) dated December 28, 2018, that granted the defendant's motion for summary judgment, denied Mrs. Kimble's cross-motion for summary judgment, and dismissed her petition for a refund of penalties paid. This brief is submitted in reply to Appellee's brief.

ARGUMENT

POINT I

THE WILLFULNESS PENALTY MUST BE LIMITED TO $100,000 UNDER IRS REGULATION

The opposition brief relies upon the recent cases of Norman v. United States, 138 Fed. Cl. 139 (2018)1 and United States v. Garrity, 2019 W.L. 1004584 (D. Ct. February 28, 2019), both of which reached contrary holdings to those of United States v. Colliot, 2018 W.L. 2271381 (W.D. Tx. May 16, 2018) and United States v. Wahdan, 325 F. Supp. 3d 1136 (D. Colo. 2018). However, a careful analysis confirms that the Colliot and Wahdan courts were correct and should be followed.

In United States v. Garrity, supra, the Court relied upon a tortured reading of the regulation (31 C.F.R. §1010.820) to counter the holding of the Court in United States v. Colliot, supra, that the regulation was issued following notice and comment and, therefore, could only be modified by notice and comment. 5 U.S.C. §553. The Garrity Court stated that, although the remainder of the regulation was issued after notice and comment, the portion containing the penalty had not been issued subject to notice and comment, and could therefore be abrogated without affording that procedure. However, whether that portion of the regulation was actually issued pursuant to the notice and comment procedure is irrelevant. Rather, the proper issue for consideration is whether notice and comment were necessary. If so, the Court's abrogation of the amendment was ineffective, leaving the maximum possible penalty for a willful violation limited to $100,000.

In Jafarzadeh v. Nielsen, 321 F. Supp. 3d 19, 45-47 (D.D.C. 2018), the Court explained the difference between “interpretive” rules, that do not require notice and comment to be passed or modified, and “legislative” rules, that do. The Court defined “interpretive” rules as those that are general statements of policy or rules of agency procedure or practice, citing 5 U.S.C. §553(b)(A). The issue in characterizing a regulation as interpretive or legislative is whether the effect of the regulation is sufficiently grave to render the regulation substantive, or whether the agency is taking a new position inconsistent with the existing regulations. In such instances, the regulation is legislative. In Children's Hospital of the King's Daughters, Inc. v. Azar, 896 F.3d 615, 620-621 (4th Cir. 2018), the new regulation purported to clarify the methodology by which certain reimbursements to hospitals would be calculated. Such a change could not be an interpretive regulation that simply states the agency's thinking on statutory construction, but was enacted pursuant to legislative authority. This was designated a legislative rule, requiring notice and comment before it could take effect.

Here, under the governing statute, 31 U.S.C. §5321(a)(5)(A), the authority to impose a penalty for failure to file an FBAR is delegated to the Secretary of the Treasury, who promulgated rules pursuant to that delegation. It is clear that a rule changing the penalties to be imposed for statutory violations, even if issued to conform to the statute, is a legislative rule requiring notice and comment. In Mid Continent Nail Corp. v. United States, 846 F.3d 1364 (Fed. Cir. 2017), the Department of Commerce issued a “limiting regulation” that clarified circumstances under which transactions would be construed as “dumping” under the governing statute. It then withdrew the regulation unilaterally, stating that the notice and comment procedure would be impractical, as immediate enforcement was necessary to ensure that the agency's action conformed to the statute. This Court disagreed and determined that the notice and comment procedure was mandatory notwithstanding that the regulation was repealed on the basis of a conflict with the statute. Thus, the regulation remained valid, as the withdrawal was invalid and in conflict with the statute. In East Bay Sanctuary Covenant v. Trump, 909 F.3d 1219 (9th Cir. 2018) the Court held that the notice and comment procedure was not a mere matter of form, but was necessary in order to ensure fairness.

Therefore, in order to impose penalties in excess of $100,000 for a willful violation, a new rule had to be issued and the proper procedure had to be followed. The only authority presented by DOJ Counsel for the proposition that the IRS could act without a governing regulation is contained in the Internal Revenue Manual, stating that new penalty ceilings would apply notwithstanding its failure to amend the regulation. (See Appellee's Brief at p. 51). This citation is curious, given DOJ Counsel's argument elsewhere that it is well settled that the manual “is not legally binding” (See Appellee's Brief at p. 26 and cases cited therein). A precatory statement in a non-binding manual is no substitute for proper action under the Administrative Procedure Act.

In fact, the argument in DOJ Counsel's brief articulates a double standard. Regarding willfulness, they maintain that Mrs. Kimble is charged with knowledge, of the complexities of the tax law regarding foreign bank accounts, a complexity that apparently escaped her husband Michael, a sophisticated bond trader (Appx57). Michael was seemingly unaware of the obligation to disclose foreign accounts when he prepared the couple's tax returns (Appx405). Yet, they strain credulity by arguing that the IRS is not charged with either knowledge of the statutory scheme it enforces, or with the substance of its own regulations, characterizing the IRS approach to its regulations as “relaxed.” In United Dominion Industries, Inc. v. United States, 532 U.S. 822, 840-841, Justice Stevens decried the Court's lax approach to the failure of the IRS to perform the functions delegated to it. This Court should not rely upon agency malfeasance to excuse it from its substantive obligation to regulate.

DOJ Counsel also asserts that 31 C.F.R. §1010.820(g)(2) was not intended to “limit the Secretary's discretion” when it was promulgated in 1987 (Appellee's Brief at 55). However, to the extent that they contend that the Secretary's discretion is now limited by the failure to amend the regulation, the fault for that limitation, and the ability to expand discretion, is in the hands of the Secretary. The IRS's failure to amend the regulations, when it was undoubtedly administratively aware of the amendment to the statute, must be regarded as willful, and an expression of the intent of the agency to enforce the statute consistently with the regulations. Therefore, at the very least, the penalty imposed upon Mrs. Kimble should be reduced to $100,000.

POINT II

THE COURT ERRONEOUSLY DETERMINED THAT MRS. KIMBLE ACTED WILLFULLY

Following the lead of the lower Court, DOJ Counsel relies upon a great deal of distorted fact, improper inferences drawn from fact, and convoluted interpretations of the law, to sustain the finding of willfulness.

A fair examination of the evidence before the Court below leads to the conclusion that the willfulness finding was erroneous, as is required for the reversal of the District Court's findings of fact. United States v. United States Gypsum Co., 333 U.S. 364, 395 (1948); Impax Laboratories, Inc. v. Lannett Holdings, Inc., 893 F.3d 1372 (Fed. Cir. 2018); Stone Basket Innovations LLC v. Cook Medical LLC, 892 F.3d 1175 (Fed. Cir. 2018).

The dictionary definition of “willful” is intentional or deliberate. Similarly, this Court has stated that “willfulness” implies personal fault. Godfrey v. United States, 748 F.2d 1568, 1577 (Fed. Cir. 1984). The defendant has never contended that Mrs. Kimble's actions fit within that definition. The only evidence bearing upon Mrs. Kimble's knowledge of the requirement to report foreign accounts was her statement that she learned of her obligation to report her foreign accounts, and to pay taxes on any gains, from an article in the New York Times. That article served as a catalyst for immediate action on her part to bring herself into compliance (Appx369, Appx377, Appx385). The DOJ has not presented any evidence that refutes that statement. Thus, it cannot fairly be contended that Mrs. Kimble acted within the dictionary or criminal law definition of willful, that is with a conscious intent to violate the law.

Thus, the issue is whether Mrs. Kimble's actions in following her father's instructions regarding the Swiss account, and her failure to disclose the French account, standing alone, amount to willfulness. Mrs. Kimble has conceded that her name appeared on the Swiss account for many years prior to her father's death, but there is no suggestion that she derived any benefit from it, obtained any income from it, deposited any funds to it, or that she had any knowledge whatsoever of the contents of the account. Similarly, there is no evidence that she exercised any dominion over the account during her father's lifetime. To the contrary, the undisputed evidence established that Mrs. Kimble always regarded the account as her father's; her characterization of it as “inherited” disclosed that she did not believe herself to be in control of the account until its true owners passed away.

DOJ Counsel has attempted to find “proof” that Mrs. Kimble “controlled” the account. Their contention that she did not regard it as “secret,” is supported solely by evidence that that she made a loan from the account to a friend. (Appellee's Brief, p. 24 fn 3). However, this loan occurred in 2011, two years after Mrs. Kimble voluntarily disclosed the existence of the account to the IRS and paid the taxes due thereupon (Appx227-230, Appx232-235, Appx237-242, Appx244-250, Appx252-257, Appx370). Clearly, at that time, the need for secrecy no longer existed.

DOJ Counsel also seeks to convince the Court that Mrs. Kimble benefited from vast income in the years prior to those covered by the FBARs ultimately filed. Again, there is no evidence that supports this supposition. In fact, Michael Kimble, who assisted Mrs. Kimble's father, Harold Green, in managing the account during his lifetime, noted that the investments made by Mr. Green were so conservatively managed that the fees charged by UBS often consumed most of the account's growth (Appx399, Appx401). An examination of the UBS account statements (Appx136-181), shows few transactions engaged in during the years of Mrs. Kimble's ownership. These consisted mostly of rolling over maturing bonds into new bonds, based upon Michael's aversion to leaving the funds in cash. (Appx402-403). The largest change in the account occurred in 2007, when Michael advised Alice that the overconcentration in Pounds Sterling was not a sound strategy. He persuaded her to roll the funds into Swiss Francs. This resulted in a steady growth of income in the account generating most of the tax liability which Mrs. Kimble paid (Appx364, Appx398).

DOJ Counsel also emphasizes the fact that Mrs. Kimble failed to disclose the account she and Michael maintained in Paris. This, however, actually supports Mrs. Kimble's contention that she did not act willfully. The Paris account was not in any way kept a secret — it was not numbered, and the statements were sent to the Kimbles. They used it extensively. They did not disclose it on their tax returns because they did not know they were obligated to do so.

There is an additional legal problem with the DOJ Counsel's willfulness formulation in its brief. According to the Trial Court, as well as the cases cited in DOJ Counsel's brief, a violation is willful if (1) the taxpayer knew of but failed to comply with the requirement to report foreign accounts but did not do so; (2) the taxpayer recklessly failed to examine her tax form to discover that there was a requirement to report foreign accounts; or (3) the taxpayer did not know of the requirement or failed to examine her tax forms, and was therefore willfully blind to the requirement. See, e.g., United States v. Williams, 489 Fed. Appx. 655 (4th Cir. 2012); United States v. McBride, 908 F. Supp. 2d 1186 (D. Utah 2012). If these criteria were to be applied in every case, every taxpayer who owns a foreign account and files a tax return without disclosing it would be liable for a willfulness penalty regardless of actual willfulness. The statute, 31 U.S.C. §5321, provides two different penalties: $10,000 for a non-willful violation, and $100,000 for a willful violation. However, DOJ Counsel has struggled to explain how a violation could ever be non-willful, suggesting that, perhaps if Mrs. Kimble had disclosed the account to her accountant (who never asked her if she had a foreign account), that would somehow make a difference. (Appellee's Brief at p. 25). Under their formulation, there can be no non-willful violations, thereby, in essence improperly negating a portion of the statute. National Association of Manufacturers v. Department of Defense, 138 S. Ct. 617, 2018 WL 491526 (January 22, 2018); Clark v. Rameker, 134 S. Ct. 2242 (2014).

Apart from this case, and Norman v. United States, supra, there appears to be only one case in which the only factor designating willfulness was failure to file an FBAR, United States v. Horowitz, 2019 W.L. 265107 (D. Md. January 18, 2019). That decision has been appealed by both parties. There, the funds in the account emanated from the taxpayers, and Mr. Horowitz transferred his money to another foreign bank after UBS reported the existence of the accounts to the United States authorities, thus signaling that he was aware of the requirement of disclosure but sought to avoid it. This is in contrast to the actions taken by Mrs. Kimble, who disclosed the existence of the accounts immediately upon learning of her obligation to do so. It should also be noted that, because of certain quirks in Horowitz, supra, the penalty ultimately imposed was 25%, not 50%.

The other recent cases regarding willfulness involve a pattern of concealment or fault in addition to the taxpayer's failure to file an FBAR. For example, the Third Circuit in Bedrosian v. United States, 912 F.3d 144 (3d Cir. 2018), reversed the order of the District Court in Bedrosian v. United States, 2017 WL 4946433 (E.D. Pa. September 19, 2017). It still did not find Mr. Bedrosian to be willful as a matter of law or fact, but remanded the case for further findings because the District Court only considered subjective rather than objective intent. There, the lower court did not find Mr. Bedrosian to have been willful although he admitted that had actual knowledge of the filing requirements. Similarly, in United States v. Garrity, 2019 W.L. 1004584 (D. Conn., February 28, 2019), the Court noted in its willfulness finding that there was criminality associated with the money deposited in the accounts, although Mr. Garrity faced only civil fines, because he was deceased.

In short, Mrs. Kimble should have been subjected only to a $10,000 penalty for a non-willful violation.

POINT III

THE IRS ABUSED ITS DISCRETION IN FAILING TO MINIMIZE THE PENALTY

Even if the finding of willfulness could be sustained, the IRS should have mitigated the penalty below the 50% level.

To the extent that the IRS mischaracterized the facts, as they did in finding willfulness, this mischaracterization not only affected Mrs. Kimble's rights, but also had a bearing upon the penalty to be imposed upon that finding. The presumption that Mrs. Kimble was the sole owner of the UBS account, and that she “added” her mother, who actually had been an owner of the account from its inception, attributes more control over the account to Mrs. Kimble than that which actually existed. The more that Mrs. Kimble could be deemed to be in control, the more the IRS could characterize her actions as willful. Moreover, the statement that she had no relationship to France belied the fact that she and her husband actually owned an apartment in Paris. The uncontroverted evidence established that Mrs. Kimble inherited/was gifted an interest in an account in Switzerland, that she neither opened nor used, and that she owned an apartment in France, where she maintained a bank account to manage her apartment. That is a very different situation. Again, regarding the UBS account, it is significant that the funds in the UBS account were already located in a foreign country, but that those funds were not used to maintain either her apartment or to pay her living expenses. Rather, she regarded that account as untouchable, and opened the Paris Account with funds that belonged to her and Michael. Factual findings based upon non-existent facts results in a clear error of judgment that should lead to the reversal of the determination. Moore v. United States, 2015 WL 1510007 (W.D. Wash. April 1, 2015).

DOJ Counsel also struggle to explain the change in position of the IRS both before and after Mrs. Kimble opted out of the OVDP. Their argument is that the evidence of the change of position came “only” from a letter written by Mrs. Kimble's counsel (Appx772-773). However, the letter was sent to an IRS employee, characterizing her position on whether Mrs. Kimble's actions were willful. There was no response to this letter, and DOJ Counsel, who had access to the addressee, chose not to dispute the facts set forth therein. In any event, there were no “facts” that changed between the examination as part of the OVDP and examination after the opt-out, and the change in position can only be viewed as retaliatory. Counsel's reliance upon Fed. R. Evidence Rule 408 to exclude this evidence is also misplaced. That rule, excluding settlement offers, is not absolute, but provides that “[t]he court may admit this evidence for another purpose, such as proving a witness's bias or prejudice, negating a contention of undue delay, or proving an effort to obstruct a criminal investigation or prosecution. Fed. R. Evidence Rule 408(b); see also Freidus v. First National Bank of Council Bluffs, 928 F.2d 793, 794-795 (8th Cir. 1991). Here, the evidence is presented to prove that the characterization of Mrs. Kimble's conduct regarding the Swiss account was retaliatory. While in the program, she was offered a 20% penalty. Only after she opted out was the penalty elevated to 50%

In conjunction with the discussion of Mrs. Kimble's exit from the OVDP, DOJ Counsel also contends that the characterization of her conduct regarding the Swiss account could not be accurate because “the 2009 OVDP, by its terms, did not distinguish between willful and non-willful actors,” citing Memorandum of Deputy Commissioner for Services and Enforcement at 1-2 (March 23, 2009). To the contrary, that Memorandum applies a two tier system. It provides that a penalty may be assessed of 20% of the amount in the foreign account in the year with the highest asset value, except that:

If (a) the taxpayer did not open or cause any accounts to be opened or entities formed, (b) there has been no activity in any account or entity (no deposits, withdrawals, etc.) during the period the account/entity was controlled by the taxpayer, and (c) all applicable U.S. taxes have been paid on the funds in the account/entities (where only account/entity earnings have escaped U.S. taxation), then the penalty in (3) is reduced to 5%. Id. at 2

These criteria fully applied to Mrs. Kimble, who left the OVDP when the IRS stubbornly refused to apply its own criteria to the proper penalty, despite acknowledging that she was correct in her contention.

Counsel also downplays the significance of the report of the National Taxpayer Advocate Service. (Appx1044-1058). According to the IRS, Mrs. Kimble is one of the worst offenders, and subject to the highest possible penalty, because she did not report her foreign account. Thus, in their estimation, there is no difference between an account, such as the UBS account, established with funds legally earned and upon which all taxes had been paid, but which is not listed on tax returns for reasons other than tax evasion, and those established with untaxed proceeds of criminal activities. Such a position makes a mockery of penalties that are to be imposed based upon a real evaluation of the relative fault of the taxpayer. If such an analysis were conducted, and even if Mrs. Kimble were correctly ruled to be willful, she would not have been subjected to the maximum possible penalty.

POINT IV

THE IMPOSITION OF THE MAXIMUM PENALTY CONSTITUTED AN EXCESSIVE FINE UNDER THE EIGHTH AMENDMENT

Even if Mrs. Kimble's conduct fit within the definition of willfulness, the penalty is still improper because it constitutes an excessive fine under the Eighth Amendment.

DOJ Counsel contends that the 50% forfeiture imposed upon Mrs. Kimble cannot be excessive under the Eighth Amendment because of the long-standing precedent that civil tax penalties are remedial, citing Helvering v. Mitchell, 303 U.S. 391 (1938). Mrs. Kimble does not contest that proposition; indeed, she paid back taxes, interest and penalties, which she is not here contesting. Rather, she contests the 50% penalty imposed upon her over and above the taxes and penalties, after she opted out of the OVDP. Moreover, Mrs. Kimble is not contesting the constitutionality of the statute that allows a 50% penalty to be imposed upon those with undisclosed foreign accounts. Rather, it is her contention that, in her particular case, that penalty is constitutionally excessive.

It appears that the 50% penalty is now imposed indiscriminately by the IRS in every situation, regardless of whether the account contained money that was legally earned, gifted or inherited, no matter whether the taxes had been paid on the money before it was deposited, which is the case here. Mrs. Kimble paid the same percentage of penalty as an individual who hid $1,00,000 of drug money in a Swiss account. This is the heart of the proportionality issue. As is set forth in Point III, supra, Mrs. Kimble's conduct cannot fairly be characterized as among the most serious possible violations under the law. Thus her penalty should also not be the most severe possible.

Another rationale advanced by DOJ Counsel is that the forfeiture is not excessive because it compensates the IRS for the trouble and expense of investigations. In this case, there was no necessary investigation; Mrs. Kimble voluntarily came forward, revealed the existence of her accounts, and undertook the necessary steps to bring herself in compliance with the law. In any event, the Supreme Court found this rationale to be inadequate to render a forfeiture remedial rather than punitive. Austin v. United States, 509 U.S. 602, 620-622 (1993).

Finally, DOJ Counsel claims that this Court cannot reach this issue because it was not specifically pled in Mrs. Kimble's complaint, although it was specifically raised in the Court below. In Lebron v. National Railroad Passenger Corp., 513 U.S. 374, 379 (1995), the appellant not only failed to raise a particular argument in the Court below, but “expressly disavowed” it. Nevertheless, the Supreme Court considered it, stating that, once a Federal claim is presented, a party can make any argument in support of it. See also Baird v. General Services Administration, 285 Fed. Appx. 746 (Fed. Cir. 2008). Mrs. Kimble clearly raised the excessiveness claim in regard to the fine, and is, therefore, free to make this argument.

CONCLUSION

The Court should reverse the Judgment below and reduce the penalty against Alice to the $10,000 non-willfulness penalty, or, in the alternative, to the $100,000 maximum under IRS regulations, or such other reduced penalty as the Court may deem appropriate.

Respectfully submitted,

PAULA SCHWARTZ FROME, ESQ.
KASE & DRUKER, ESQS.
Attorneys for Appellant
1325 Franklin Avenue
Suite 225
Garden City, New York 11530
(516) 746-4300

FOOTNOTES

1That case is currently on appeal to this Court under number 2018-2408.

END FOOTNOTES

DOCUMENT ATTRIBUTES
  • Case Name
    Alice Kimble v. United States
  • Court
    United States Court of Appeals for the Federal Circuit
  • Docket
    No. 19-1590
  • Institutional Authors
    Kase & Druker Esqs
  • Subject Area/Tax Topics
  • Jurisdictions
  • Tax Analysts Document Number
    2019-33152
  • Tax Analysts Electronic Citation
    2019 TNTI 169-17
    2019 TNTF 169-16
Copy RID