PRELIMINARY PRINT 

Volume 598 U. S. Part 1 

Pages 85–114 

OFFICIAL REPORTS 

OF 

THE SUPREME COURT 

February 28, 2023 

REBECCA A. WOMELDORF 

reporter of decisions 

Page Proof Pending Publication

NOTICE: This preliminary print is subject to formal revision before 

the bound volume is published. Users are requested to notify the Reporter 

of Decisions, Supreme Court of the United States, Washington, D.C. 20543, 

pio@supremecourt.gov, of any typographical or other formal errors. 
OCTOBER TERM, 2022 85 

Syllabus 

BITTNER v. UNITED STATES 

certiorari to the united states court of appeals for 

the fth circuit 

No. 21–1195. Argued November 2, 2022—Decided February 28, 2023 

The Bank Secrecy Act (BSA) and its implementing regulations require 

U. S. persons with certain fnancial interests in foreign accounts to fle 

an annual report known as an “FBAR”—the Report of Foreign Bank 

and Financial Accounts. The statute imposes a maximum $10,000 penalty for nonwillful violations of the law. These reports are designed to 

help the government trace funds that may be used for illicit purposes 

and identify unreported income that may be subject to taxation. Petitioner Alexandru Bittner—a dual citizen of Romania and the United 

States—learned of his BSA reporting obligations after he returned to 

the United States from Romania in 2011, and he subsequently submitted 

the required annual reports covering fve years (2007 through 2011). 

The government deemed Bittner's late-fled reports defcient because 

the reports did not address all accounts as to which Bittner had either 

signatory authority or a qualifying interest. Bittner fled corrected 

FBARs providing information for each of his accounts—61 accounts in 

2007, 51 in 2008, 53 in 2009 and 2010, and 54 in 2011. The government 

neither contested the accuracy of Bittner's new flings nor suggested 

that Bittner's previous errors were willful. But because the government took the view that nonwillful penalties apply to each account not 

accurately or timely reported, and because Bittner's fve late-fled annual reports collectively involved 272 accounts, the government calculated the penalty due at $2.72 million. Bittner challenged that penalty 

in court, arguing that the BSA authorizes a maximum penalty for nonwillful violations of $10,000 per report, not $10,000 per account. The 

Fifth Circuit upheld the government's assessment. 

Page Proof Pending Publication

Held: The BSA's $10,000 maximum penalty for the nonwillful failure to fle 

a compliant report accrues on a per-report, not a per-account, basis. 

Pp. 92–101, 103–104. 

(a) The Court begins with the terms of the most immediately relevant 

statutory provisions—31 U. S. C. § 5314, which delineates an individual's 

legal duties under the BSA, and § 5321, which outlines the penalties that 

follow for failing to discharge those duties. Section 5314 provides that 

the Secretary of the Treasury “shall” require certain persons to “keep 

records, fle reports, or keep records and fle reports” when they “mak[e] 

a transaction or maintai[n] a relation” with a “foreign fnancial agency.” 
86 BITTNER v. UNITED STATES 

Syllabus 

The statute states that reports “shall contain” information about “the 

identity and address of participants in a transaction or relationship,” 

“the legal capacity in which a participant is acting,” and “the identity 

of real parties in interest,” along with a “description of the transaction.” 

Section 5314 does not speak of accounts or their number but rather the 

legal duty to fle reports which must include various kinds of information about an individual's foreign “transaction[s] or relationship[s].” Violation of § 5314's reporting obligation is binary: One fles a report “in 

the way and to the extent the Secretary prescribes,” or one does not; 

multiple willful errors may establish a violation of § 5314 but even a 

single mistake, willful or not, constitutes a § 5314 violation. The only 

distinction the law draws between a report containing a single mistake and one containing multiple mistakes concerns the appropriate 

penalty. 

Section 5321 authorizes the Secretary to impose a civil penalty of up 

to $10,000 for “any violation” of § 5314. The “nonwillful” penalty provision in §§ 5321(a)(5)(A) and (B)(i) does not speak in terms of accounts 

but rather pegs the quantity of nonwillful penalties to the quantity of 

“violation[s].” Section 5314 provides that a violation occurs when an 

individual fails to fle a report consistent with the statute's commands. 

Multiple defcient reports may yield multiple $10,000 penalties, and even 

a seemingly simple defciency in a single report may expose an individual to a $10,000 penalty. But penalties for nonwillful violations accrue 

on a per-report, not a per-account, basis. 

Page Proof Pending Publication

To be sure, for certain cases that involve willful violations, the statute 

does tailor penalties to accounts. Section 5321 specifcally addresses a 

subclass of willful violations that involve “a failure to report the existence of an account or any identifying information required to be provided with respect to an account.” § 5321(a)(5)(D)(ii). In such cases, 

the Secretary may impose a maximum penalty of either $100,000 or 50% 

of “the balance in the account at the time of the violation”—whichever is 

greater. §§ 5321(a)(5)(C) and (D)(ii). The government maintains that 

because Congress explicitly authorized per-account penalties for some 

willful violations, the Court should infer that Congress meant to do so 

for analogous nonwillful violations. But the government's interpretation defes a traditional rule of statutory construction: When Congress 

includes particular language in one section of a statute and omits it from 

a neighbor, the Court normally understands that difference in language 

to convey a difference in meaning (expressio unius est exclusio alterius). Here the statute twice provides evidence that when Congress 

wished to tie sanctions to account-level information, it knew exactly how 

to do so. Congress said in §§ 5321(a)(5)(C) and (D)(ii) that penalties for 

certain willful violations may be measured on a per-account basis. And 

Congress said in § 5321(a)(5)(B)(ii) that a person may invoke the reason-
Cite as: 598 U. S. 85 (2023) 87 

Syllabus 

able cause exception only on a showing of per-account accuracy. But 

Congress did not say that the government may impose nonwillful penalties on a per-account basis. Pp. 92–96. 

(b) The Court fnds a number of additional contextual clues that cut 

against the government's theory in this case. First, the government 

has repeatedly issued guidance to the public—in various warnings, fact 

sheets, and instructions—that seems to tell the public that the failure 

to fle a report represents a single violation exposing a nonwillful violator to one $10,000 penalty. While the government's guidance documents do not control the Court's analysis, courts may consider the inconsistency between the government's current view and its past views 

when weighing the persuasiveness of any interpretation it offers. 

Skidmore v. Swift & Co., 323 U. S. 134, 140. 

Second, the drafting history of the nonwillful penalty provision undermines the theory the government urges the Court to adopt. In 1970, 

the BSA included penalties only for willful violations. In 1986, Congress authorized the imposition of penalties on a per-account basis for 

certain willful violations. When Congress amended the law again in 

2004 to authorize penalties for nonwillful violations, Congress could 

have, but did not, simply use language from its 1986 amendment to extend per-account penalties for nonwillful violations. 

Page Proof Pending Publication

Still other features of the BSA and its regulatory scheme suggest the 

law aims to provide the government with a report suffcient to tip it to 

the need for further investigation, not to ensure the presentation of 

every detail or maximize revenue for each mistake. Consider that Congress declared that the BSA's “purpose” is “to require” certain “reports” 

or “records” that may assist the government in various kinds of investigations. § 5311. Absent is any indication that Congress sought to 

maximize penalties for every nonwillful mistake. Similarly, the Secretary's regulations implementing the BSA require individuals with fewer 

than 25 accounts to provide details about each account while individuals 

(like Bittner) with 25 or more accounts do not need to list each account 

or provide account-specifc details unless the Secretary requests more 

“detailed information.” 31 CFR § 1010.350(g)(1). Finally, the government's per-account penalty reading invites anomalies—for example, subjecting willful violators to lower penalties than nonwillful violators— 

avoided by reading the nonwillful penalty to apply on a per-report 

basis. 

The government replies that the per-report interpretation risks the 

anomaly that the Secretary could formulate reporting requirements to 

require a separate report for each account and in that way effectively 

achieve a per-account penalty for nonwillful violations. What this 

proves is unclear, as the Secretary's discretion to require more (or 

fewer) reports is not at issue here, and in any event does not answer 
88 BITTNER v. UNITED STATES 

Opinion of the Court 

whether the Secretary may impose nonwillful penalties on a per-report 

or per-account basis. Pp. 96–101. 

(c) Best read, the BSA treats the failure to fle a legally compliant 

report as one violation carrying a maximum penalty of $10,000. 

Pp. 103–104. 

19 F. 4th 734, reversed and remanded. 

Gorsuch, J., announced the judgment of the Court and delivered the 

opinion of the Court except as to Part II–C. Jackson, J., joined that 

opinion in full, and Roberts, C. J., and Alito and Kavanaugh, JJ., joined 

except for Part II–C. Barrett, J., fled a dissenting opinion, in which 

Thomas, Sotomayor, and Kagan, JJ., joined, post, p. 104. 

Daniel L. Geyser argued the cause for petitioner. With 

him on the briefs were Angela M. Oliver, Rachael E. Rubenstein, and Farley P. Katz. 

Matthew Guarnieri argued the cause for the United 

States. With him on the brief were Solicitor General Prelogar, Deputy Assistant Attorney General Hubbert, Deputy 

Solicitor General Gannon, Francesca Ugolini, Arthur T. 

Page Proof Pending Publication

Catterall, and Paul A. Allulis.* 

Justice Gorsuch announced the judgment of the Court 

and delivered the opinion of the Court with respect to 

Parts I, II–A, II–B, and III, and an opinion with respect to 

Part II–C, in which Justice Jackson joins. 

The Bank Secrecy Act and its implementing regulations 

require certain individuals to fle annual reports with the 

*Briefs of amici curiae urging reversal were fled for the American 

College of Tax Counsel by Caroline D. Ciraolo, Megan L. Brackney, and 

Caroline Rule; for the Center for Taxpayer Rights by Guinevere Moore, 

Zhanna A. Ziering, Ajay Gupta, and Aaron M. Esman; for the Chamber 

of Commerce of the United States of America by Joseph R. Palmore and 

Edward L. Froelich; and for the National Federation of Independent Business Small Business Legal Center et al. by Arthur G. Sapper, Elizabeth Milito, Ellen Steen, Travis Cushman, Thomas Ward, and Angelo I. Amador. 

Stephen M. Kohn and Rachel G. Talay fled a brief of amicus curiae 

urging affrmance for the National Whistleblower Center. 

David E. Sloan fled a brief of amicus curiae for the American College 

of Trust and Estate Counsel. 
Cite as: 598 U. S. 85 (2023) 89 

Opinion of the Court 

federal government about their foreign bank accounts. The 

statute imposes a maximum $10,000 penalty for nonwillful 

violations of the law. But recently a question has arisen. 

Does someone who fails to fle a timely or accurate annual 

report commit a single violation subject to a single $10,000 

penalty? Or does that person commit separate violations 

and incur separate $10,000 penalties for each account not 

properly recorded within a single report? 

The answer makes a difference, especially for immigrants 

who hold accounts abroad and Americans who make their 

lives outside the country. On one view, penalties accrue on 

a per-report basis. So, for example, a single late-fled report 

disclosing the existence of 10 accounts may yield a maximum 

fne of $10,000. On another view, penalties multiply on a 

per-account basis, so the same report can invite a fne of 

$100,000 even if the individual's foreign holdings or total net 

worth do not approach that amount. Because the Ninth Circuit read the law one way and the Fifth Circuit the other, 

Page Proof Pending Publication

we agreed to take this case. 

I 

The Bank Secrecy Act (BSA) does not make it illegal to 

hold foreign accounts. Nor does the BSA tax those accounts. To the contrary, the federal government has acknowledged that “U. S. persons maintain overseas fnancial 

accounts for a variety of legitimate reasons including convenience and access.” IRS Pub. 5569, Report of Foreign 

Bank & Financial Accounts (FBAR) Reference Guide, p. 1 

(Rev. 3–2022). As relevant here, the BSA simply requires 

those who possess foreign accounts with an aggregate balance of more than $10,000 to fle an annual report on a form 

known as an “FBAR”—the Report of Foreign Bank and Financial Accounts. 31 U. S. C. § 5314; 31 CFR § 1010.306 

(2021). These reports are designed to help the government 

“trace funds” that may be used for “illicit purposes” and 

identify “unreported income” that may be subject to taxation 
90 BITTNER v. UNITED STATES 

Opinion of the Court 

separately under the terms of the Internal Revenue Code. 

FBAR Reference Guide, at 1. 

The facts of the Ninth and Fifth Circuit cases help illuminate the particular question about the BSA now before us. 

The frst dispute involved Jane Boyd, an American citizen 

who held 13 relevant accounts in the United Kingdom. The 

amounts in those accounts increased signifcantly after her 

father died in 2009 and she deposited her inheritance. 

United States v. Boyd, 991 F. 3d 1077, 1079 (CA9 2021). Because the aggregate amount in Ms. Boyd's accounts exceeded 

$10,000 in 2009, she should have fled an FBAR in 2010. Neglecting to do so, she corrected the error in 2012, submitting 

a complete and accurate report at that time. Ibid. The 

government acknowledged that Ms. Boyd's violation of the 

law was “non-willful.” Still, the government said, it had the 

right to impose a $130,000 penalty—$10,000 for each of her 

13 late-reported accounts. Ibid. 

Page Proof Pending Publication

Ms. Boyd challenged the penalty in court where she argued that her failure to fle a single timely FBAR subjected 

her to a single maximum penalty of $10,000. The district 

court rejected that argument and sided with the government. United States v. Boyd, 123 AFTR 2d 2019–1651 (CD 

Cal. 2019). But in time the Ninth Circuit vindicated Ms. 

Boyd's view, holding that the BSA authorizes “only one nonwillful penalty when an untimely, but accurate, FBAR is 

fled, no matter the number of accounts.” 991 F. 3d, at 1078. 

More recently, the same question arose in the Fifth Circuit 

in a case involving Alexandru Bittner. Born and raised in 

Romania, Mr. Bittner immigrated to the United States at a 

young age in 1982. He worked frst as a dishwasher and 

later as a plumber and along the way became a naturalized 

citizen. After the fall of communism, Mr. Bittner returned 

to Romania in 1990 where he launched a successful business 

career. Like many dual citizens, he did not appreciate that 

U. S. law required him to keep the government apprised of 
Cite as: 598 U. S. 85 (2023) 91 

Opinion of the Court 

his overseas fnancial accounts even while he lived abroad. 

19 F. 4th 734, 739–740 (CA5 2021). Shortly after returning 

to the United States in 2011, Mr. Bittner learned of his reporting obligations and engaged an accountant to help him 

prepare the required reports—covering fve years, from 2007 

through 2011. Id., at 739. 

But the story did not end there. The government identifed a problem in the late-fled reports. While those reports 

provided details about Mr. Bittner's largest account, they neglected to address 25 or more other accounts over which he 

had signatory authority or in which he had a qualifying interest. Ibid. After the government informed him of this 

defciency, Mr. Bittner hired a new accountant who helped 

him fle corrected FBARs for each year in question. Ibid. 

Under governing regulations, flers with signatory authority 

over or a qualifying interest in fewer than 25 accounts must 

provide details about each account, but individuals with 25 

or more accounts need only check a box and disclose the total 

number of accounts. 31 CFR § 1010.350(g). Instead of employing that expediency, however, Mr. Bittner and his new 

accountant volunteered details for each and every one of his 

accounts—61 accounts in 2007, 51 in 2008, 53 in 2009 and 

2010, and 54 in 2011. 19 F. 4th, at 739–740. 

Page Proof Pending Publication

The question then turned to what penalty Mr. Bittner 

should pay. The government did not contest the accuracy 

of Mr. Bittner's new flings. Nor did the government suggest that his previous errors were willful. But because the 

government took the view that nonwillful penalties apply to 

each account not accurately or timely reported, and because 

Mr. Bittner's late-fled reports for 2007–2011 collectively involved 272 accounts, the government thought a fne of $2.72 

million was in order. Id., at 739–740. 

Like Ms. Boyd before him, Mr. Bittner challenged his penalty in court, arguing that the BSA authorizes a maximum 

penalty for nonwillful violations of $10,000 per report, not 
92 BITTNER v. UNITED STATES 

Opinion of the Court 

$10,000 per account. As he put it, an individual's failure to 

fle fve reports in a timely manner might invite a penalty 

of $50,000, but it cannot support a penalty running into the 

millions. The district court agreed with Mr. Bittner's reading of the law, 469 F. Supp. 3d 709, 724–726 (ED Tex. 2020), 

but the Fifth Circuit upheld the government's assessment, 

19 F. 4th, at 749. 

II 

With those facts in mind, the question before us boils 

down to this: Does the BSA's $10,000 penalty for nonwillful 

violations accrue on a per-report or a per-account basis? 

Mr. Bittner urges us to agree with the Ninth Circuit and 

hold that the law authorizes a single $10,000 fne for each 

untimely or inaccurate report. The government defends the 

judgment of the Fifth Circuit and asks us to hold that a new 

$10,000 penalty attaches to each account not timely or accurately disclosed within a report. 

Page Proof Pending Publication

A 

To resolve who has the better reading of the law, we begin 

with the terms of the most immediately relevant statutory 

provisions, 31 U. S. C. § 5314 and § 5321. The frst delineates 

an individual's legal duties under the BSA, the second outlines the penalties that follow for failing to discharge those 

duties. 

Section 5314 provides that the Secretary of the Treasury 

“shall” require certain persons to “keep records, fle reports, 

or keep records and fle reports” when they “mak[e] a transaction or maintai[n] a relation” with a “foreign fnancial 

agency.” § 5314(a). When it comes to the duty to fle reports, the relevant duty in our case, the statute says that 

reports “shall contain” information about “the identity and 

address of participants in a transaction or relationship,” “the 

legal capacity in which a participant is acting,” and “the iden-
Cite as: 598 U. S. 85 (2023) 93 

Opinion of the Court 

tity of real parties in interest,” along with a “description of 

the transaction.” §§ 5314(a)(1)–(4). The law also directs 

the Secretary to prescribe “the way and . . . the extent” to 

which reports must be fled. § 5314(a). 

Immediately, one thing becomes clear. Section 5314 does 

not speak of accounts or their number. The word “account” 

does not even appear. Instead, the relevant legal duty is the 

duty to fle reports. Of course, those reports must include 

various kinds of information about an individual's foreign 

“transaction[s] or relationship[s].” But whether a report is 

fled late, whether a timely report contains one mistake 

about the “address of [the] participants in a transaction,” or 

whether a report includes multiple willful errors in its “description of . . . transaction[s],” the duty to supply a compliant report is violated. Put another way, the statutory 

obligation is binary. Either one fles a report “in the way 

and to the extent the Secretary prescribes,” or one does not. 

Multiple willful errors about specifc accounts in a single report may confrm a violation of § 5314, but even a single 

nonwillful mistake is enough to pose a problem. One way 

or another, § 5314 is violated. The only distinction the 

law draws between these cases concerns the appropriate 

penalty. 

Page Proof Pending Publication

That's where § 5321 comes in. As a baseline, § 5321(a)(5) 

authorizes the Secretary to impose a civil penalty of up to 

$10,000 for “any violation” of § 5314. 31 U. S. C. §§ 5321(a) 

(5)(A) and (B)(i). Some call this the “nonwillful” penalty 

provision. And here again, one thing is immediately apparent: The law still does not speak of accounts or their number. 

Instead, the statute pegs the quantity of nonwillful penalties 

to the quantity of “violation[s].” And as we have seen, 

§ 5314 provides that a violation occurs when an individual 

fails to fle a report consistent with the statute's commands. 

So multiple defcient reports may yield multiple $10,000 penalties, and even a seemingly simple defciency in a single re-
94 BITTNER v. UNITED STATES 

Opinion of the Court 

port may expose an individual to a $10,000 penalty. But in 

all cases, penalties for nonwillful violations accrue on a perreport, not a per-account, basis.1 

To be sure, the statute's penalty provisions do not stop 

there. Section 5321 goes on to say that if an individual 

“willfully” violates § 5314, he may face a maximum penalty 

of $100,000. § 5321(a)(5)(C)(i)(I). The statute then adds an 

even more specifc rule for a subclass of willful violations— 

those that involve “a failure to report the existence of an 

account or any identifying information required to be provided with respect to an account.” § 5321(a)(5)(D)(ii). In 

cases like that, the law authorizes the Secretary to impose a 

maximum penalty of either $100,000 or 50% of “the balance 

in the account at the time of the violation”—whichever is 

greater. §§ 5321(a)(5)(C) and (D)(ii). So here, at last, the 

law does tailor penalties to accounts. But the statute does 

so only for a certain category of cases that involve willful 

violations, not for cases like ours that involve only nonwill- Page Proof Pending Publication

ful violations. 

No surprise, the government seeks to turn this feature of 

the law to its advantage. Because Congress explicitly authorized per-account penalties for some willful violations, the 

government asks us to infer that Congress meant to do so 

for analogous nonwillful violations as well. Brief for United 

States 20–23. But, in truth, this line of reasoning cuts 

against the government. When Congress includes particular language in one section of a statute but omits it from a 

neighbor, we normally understand that difference in language to convey a difference in meaning (expressio unius est 

exclusio alterius). The government's interpretation defes 

this traditional rule of statutory construction. See, e. g., Department of Homeland Security v. MacLean, 574 U. S. 383, 

391 (2015); Gallardo v. Marstiller, 596 U. S. –––, –––, ––– 

(2022). 

1 What, if any, mens rea the government must prove to impose a “nonwillful” penalty is not before us. 
Cite as: 598 U. S. 85 (2023) 95 

Opinion of the Court 

The government's problem repeats itself too. Section 

5321(a)(5)(B)(ii) contains a “[r]easonable cause exception.” 

That exception allows an individual to escape a penalty (say 

for fling late) only if his violation was nonwillful, “due to 

reasonable cause,” and the report he eventually fles accurately refects each and every account.2 All of which supplies further evidence that, when Congress wished to tie 

sanctions to account-level information, it knew exactly how 

to do so. Congress said that penalties for certain willful violations may be measured on a per-account basis. Congress 

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.3 

Page Proof Pending Publication

The dissent founders on the same shoals. It suggests that 

the “pattern” of account-specifc 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. Post, at 107, 109–110 (opinion of 

Barrett, J.). 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 

2 At argument, the government explained that the reasonable cause exception works in this fashion to protect those who fle a late FBAR so 

long as the report they eventually fle accurately provides the required 

information. Tr. of Oral Arg. 57–58. 3 What if an individual (like Mr. Bittner) fails to fle a timely report and 

later fles an inaccurate one—would the statute classify that as two violations of the duty to fle a statutorily compliant report rather than one? 

The parties do not join issue on the question and we do not pass upon it. 

Nor does the answer matter for present purposes. Either way, the statute conditions nonwillful penalties on the number of reports, not on the 

number of accounts. 
96 BITTNER v. UNITED STATES 

Opinion of the Court 

dissent points to the fact that even a single qualifying foreign bank account “triggers” the duty to fle a report, and 

the fact that a compliant report must contain a “list of information” about bank addresses and the like. Post, at 105. 

These features of the law, the dissent says, “underscor[e]” 

that nonwillful violations accrue per account. Ibid. But 

that simply does not follow. The fact that a person has a 

duty to fle 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.4 

B 

Widening our view beyond § 5314 and § 5321, we fnd 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 fle an 

FBAR and fails to properly fle 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 fle . . . 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 fle an FBAR and fails to properly 

fle may be subject to a civil penalty not to exceed $10,000.” 

Page Proof Pending Publication

4 The dissent also stresses that 31 U. S. C. § 5314 imposes two duties—a 

duty to fle reports and keep records. Post, at 106. From this, the dissent reasons, “if violations of [the] recordkeeping obligation accrue on a 

per-account basis, the same should be true of violations of [the] obligation 

to fle reports.” Ibid. But the question whether violations of the recordkeeping duty accrue per account or on some other basis is not before us. 

Nor is it obvious why violations of two separate statutory duties must 

accrue in the same way—especially when the law authorizes the Secretary 

to “prescrib[e]” different “way[s]” the two duties may be discharged. 

§ 5314(a). 
Cite as: 598 U. S. 85 (2023) 97 

Opinion of the Court 

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 fle 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 fle [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 

fts easily with the government's current theory. In all of 

these warnings, fact sheets, and instructions, the government seemed to tell the public that the failure to fle a report 

represents a single violation exposing a nonwillful violator 

to one $10,000 penalty. Nowhere in these materials did the 

government announce its current theory that a single defcient or untimely report can give rise to multiple violations, 

that the number of nonwillful penalties may turn on the number of accounts, or that the $10,000 maximum penalty may 

be multiplied 272 times or more without respect to an individual's foreign holdings or net worth. 

Page Proof Pending Publication

Doubtless, the government's guidance documents do not 

control our analysis and cannot displace our independent obligation to interpret the law. But this Court has long said 

that courts may consider the consistency of an agency's 

views when we weigh the persuasiveness of any interpretation it proffers in court. Skidmore v. Swift & Co., 323 U. S. 

134, 140 (1944). Here, the government has repeatedly issued guidance to the public at odds with the interpretation 

it now asks us to adopt. And surely that counts as one more 

reason yet to question whether its current position represents the best view of the law.5 

5 The dissent expresses “surpris[e]” that we cite the government's guidance documents. Post, at 111. We don't see why. Our point is not that 

the administrative guidance is controlling. Nor is it that the government's guidance documents have consistently endorsed Mr. Bittner's read-
98 BITTNER v. UNITED STATES 

Opinion of the Court 

The drafting history of the nonwillful penalty provision 

undermines the government's theory too. When Congress 

adopted the BSA in 1970, the law included penalties only for 

willful violations and capped them at $1,000. § 125(a), 84 

Stat. 1117. It took many years before Congress in 1986 authorized the government to impose penalties on a peraccount basis for certain willful violations. § 1357(c), 100 

Stat. 3207–25. And it took many years more before Congress in 2004 amended the law again to authorize penalties 

for nonwillful violations. § 821(a), 118 Stat. 1586. When 

crafting this latest provision, it would have been the simplest 

thing for Congress to model its work on its 1986 amendment 

and authorize per-account penalties for nonwillful violations 

just as it had for certain willful ones. But Congress didn't 

do anything like that. The language it adopted for nonwillful penalties in 2004 bears scant resemblance to the language 

it used when authorizing per-account penalties for certain 

Page Proof Pending Publication

willful violations in 1986. 

Consider as well Congress's statement of purpose. Congress has declared that the BSA's “purpose” is “to require” 

certain “reports” or “records” that may assist the government in everything from criminal and tax to intelligence 

and counterintelligence investigations. 31 U. S. C. § 5311.6 

ing of the law. It is simply that, when the government (or any litigant) 

speaks out of both sides of its mouth, no one should be surprised if its 

latest utterance isn't the most convincing one. This is no new principle 

in the law any more than it is in life. In Skidmore, this Court noted 

that the persuasiveness of an agency's interpretation of the law may be 

undermined by its inconsistency “with earlier [agency] pronouncements.” 

323 U. S., at 140. 6 “A preamble, purpose clause, or recital is a permissible indicator of 

meaning.” A. Scalia & B. Garner, Reading Law: The Interpretation of 

Legal Texts 217 (2012) (Scalia & Garner). See also 1 J. Story, Commentaries on the Constitution of the United States § 459, p. 443 (1833) (“[T]he 

preamble of a statute is a key to open the mind of the makers, as to the 

mischiefs, which are to be remedied, and the objects, which are to be 

accomplished by the provisions of the statute”). 
Cite as: 598 U. S. 85 (2023) 99 

Opinion of the Court 

Here we see further evidence that the relevant legal duty 

the BSA establishes is the duty to fle certain reports. We 

see evidence, too, that the point of these reports is to supply 

the government with information potentially relevant to various kinds of investigations, criminal and civil alike. But 

what we do not see is any indication that Congress sought 

to maximize penalties for every nonwillful mistake (whether 

a late fling, a transposed account number, or an out-of-date 

bank address). See Brief for American College of Trust and 

Estate Counsel as Amicus Curiae 5–7.7 

The Secretary's regulations implementing the BSA convey 

the same message. Under those regulations, individuals 

with fewer than 25 accounts must provide details about each 

account while those (like Mr. Bittner) with 25 or more 

accounts do not need to list each one or provide accountspecifc details about any of them. 31 CFR § 1010.350(g)(1). 

Instead, flers with 25 or more accounts “need only provide 

the number of fnancial accounts and certain other basic 

information.” Ibid. Naturally, an individual must supply more “detailed information” if the “Secretary or his 

delegate” later chooses to follow up and request it. Ibid. 

But no detailed account-level information is required in 

the fler's initial report. It's yet another feature of the 

BSA and its regulatory scheme that suggests the law aims 

to provide the government with a report suffcient to tip 

it to the need for further investigation, not to ensure the 

presentation of every detail or maximize revenue for each 

mistake. 

Page Proof Pending Publication

7 The dissent insists that its per-account theory would better advance 

“the statute's purpose” of cracking down on criminals and terrorists. 

Post, at 112. But few statutes pursue their stated “ `purpose at all costs.' ” 

Kucana v. Holder, 558 U. S. 233, 252 (2010). Nor is it clear how calculating nonwillful penalties on a per-account basis would advance the purpose 

the dissent attributes to the BSA. Are we to imagine that drug cartels 

and terrorists often make innocent mistakes when fling their FBARs? 
100 BITTNER v. UNITED STATES 

Opinion of the Court 

The Secretary's regulation also points to some of the 

anomalies that accompany the government's per-account theory. On the government's telling, an individual with, say, 

three accounts who makes nonwillful errors when providing 

details about these accounts faces a potential penalty of 

$30,000. He faces that penalty no matter how slight his errors, and regardless whether his foreign holdings (or even 

net worth) approach the same amount. Meanwhile, a person 

with 300 bank accounts runs far less risk of incurring any 

penalty. He doesn't have to provide any detail about his 

accounts, just correctly disclose how many he holds. See 

also Brief for American College of Tax Counsel as Amicus 

Curiae 15–16 (Brief for Tax Counsel). 

Nor is this the only incongruity the government's theory 

invites. Consider someone who has a $10 million balance in 

a single account who nonwillfully fails to report that account. 

Everyone agrees he is subject to a single penalty of $10,000. 

Yet under the government's theory, another person engaging 

in the same nonwillful conduct with respect to a dozen foreign accounts with an aggregate balance of $10,001 would be 

subject to a penalty of $120,000. Id., at 14–15. 

Page Proof Pending Publication

On the government's view, too, those who willfully violate 

the law may face lower penalties than those who violate the 

law nonwillfully. For example, an individual who holds $1 

million in a foreign account during the course of a year but 

withdraws it before the fling deadline and then willfully fails 

to fle an FBAR faces a maximum penalty of $100,000. But 

a person who errs nonwillfully in listing 20 accounts with an 

aggregate balance of $50,000 can face a penalty of up to 

$200,000. Id., at 14. Reading the law to apply nonwillful 

penalties per report invites none of these curiosities; the government's per-account theory invites them all.8 

8 The dissent suggests that these examples bear “limited relevance” because it is only “natura[l]” that a person “who violates the law many 

times” might incur more penalties. Post, at 112–113. But this assumes 
Cite as: 598 U. S. 85 (2023) 101 

Opinion of Gorsuch, J. 

The government does not dispute any of this but replies 

that the per-report interpretation risks an anomaly of its 

own. After all, the government observes, the BSA affords 

the Secretary considerable discretion in formulating reporting requirements. So much so, the government contends, 

that the Secretary could require a separate report for each 

account and in that way effectively achieve a per-account 

penalty for nonwillful violations. Brief for United States 32. 

But what does this prove? Assuming the Secretary could 

require more frequent reports (a question not before us), 

that would mean the Secretary could also require less frequent reports (for example, every other year). Likewise, 

the Secretary could reduce the amount of information required in those reports (say, expanding the tick-box option 

to all flers, not just those with 25 or more accounts). Perhaps more fundamentally, whether the Secretary may lawfully ordain more or fewer reports does nothing to answer 

the question whether the Secretary may impose nonwillful 

penalties on a per-report or per-account basis. That question would still remain. Reply Brief 7–8. 

Page Proof Pending Publication

C 

To the extent doubt persists at this point about the best 

reading of the BSA, a venerable principle supplies a way to 

resolve it. Under the rule of lenity, this Court has long held, 

statutes imposing penalties are to be “construed strictly” 

against the government and in favor of individuals. Commissioner v. Acker, 361 U. S. 87, 91 (1959). Following that 

rule here requires us to favor a per-report approach that 

would restrain BSA penalties over a per-account theory that 

would greatly enhance them. 

The government resists this conclusion by seeking to distinguish Acker. That case involved a penalty provision in 

that violations accrue on a per-account basis, which begs the very question 

at issue before us. 
102 BITTNER v. UNITED STATES 

Opinion of Gorsuch, J. 

the Internal Revenue Code, the government emphasizes, 

while this case involves a penalty provision in the BSA. 

Brief for United States 44–45. But that distinction makes 

no difference. The rule of lenity is not shackled to the Internal Revenue Code or any other chapter of federal statutory 

law. Instead, as Acker acknowledged, “[t]he law is settled 

that penal statutes are to be construed strictly,” and an individual “is not to be subjected to a penalty unless the words 

of the statute plainly impose it.” 361 U. S., at 91 (internal 

quotation marks omitted and emphasis added). Notably, 

too, Acker cited to and relied on cases applying this same 

principle to penalty provisions under a wide array of statutes, including the Communications Act of 1934, a bankruptcy law, and the National Banking Act. See ibid. (citing 

FCC v. American Broadcasting Co., 347 U. S. 284, 296 (1954); 

Keppel v. Tiffn Savings Bank, 197 U. S. 356, 362 (1905); and 

Tiffany v. National Bank of Mo., 18 Wall. 409, 410 (1874)); 

see also Scalia & Garner 297 (the rule of lenity applies “to 

Page Proof Pending Publication

civil penalties”). 

Two additional features of this case make it a particularly 

appropriate candidate for the rule of lenity. First, the rule 

exists in part to protect the Due Process Clause's promise 

that “a fair warning should be given to the world in language 

that the common world will understand, of what the law intends to do if a certain line is passed.” McBoyle v. United 

States, 283 U. S. 25, 27 (1931); see also Connally v. General 

Constr. Co., 269 U. S. 385, 393 (1926); Wooden v. United 

States, 595 U. S. –––, ––– – ––– (2022) (Gorsuch, J., concurring in judgment). And the government's current theory 

poses a serious fair-notice problem. The relevant provisions 

of the BSA nowhere discuss per-account penalties for nonwillful violations. A number of the government's own public guidance documents have seemingly warned of perreport, not per-account, penalties for nonwillful violations. 

See Part II–B, supra; Brief for Tax Counsel 6–24. We are 

even told that, until 2008 and 2009, when the government 
Cite as: 598 U. S. 85 (2023) 103 

Opinion of the Court 

began aggressively enforcing FBAR penalties, “many experienced tax professionals and return preparers were not 

aware of the FBAR reporting obligations,” let alone aware 

of the government's current theory about the scope of penalties for nonwillful violations. Brief for Center for Taxpayer 

Rights as Amicus Curiae 24, 20–28, and n. 21. If many experienced accountants were unable to anticipate the government's current theory, we do not see how “the common 

world” had fair notice of it. McBoyle, 283 U. S., at 27. 

Second, the question before us has criminal as well as civil 

ramifcations. Section 5321 outlines civil penalties for nonwillful and willful “violation[s]” of the BSA. Next door, 

§ 5322 provides criminal sanctions for “willfully violating” 

the Act. The term “violation” or “violating” is a constant 

between these two provisions. Accordingly, if the government were right that violations accrue on a per-account 

rather than a per-report basis under § 5321, the same rule 

would apply under § 5322. Each willfully misstated or latereported account, rather than each defcient or late-fled report, would give rise to a separate criminal violation carrying the possibility of a $250,000 fne and fve years in prison. 

In a case like Mr. Bittner's, involving 5 reports and 272 accounts, that would mean a person who willfully violates the 

BSA could face a $68 million fne and 1,360 years in prison 

rather than a $1.25 million fne and 25 years in prison. In 

these circumstances, the rule of lenity, not to mention a dose 

of common sense, favors a strict construction. See Leocal 

Page Proof Pending Publication

v. Ashcroft, 543 U. S. 1, 12, n. 8 (2004) (lenity applies when a 

disputed statutory provision has “both criminal and noncriminal applications”); see also FCC, 347 U. S., at 296; United 

States v. Thompson/Center Arms Co., 504 U. S. 505, 517–518 

(1992) (plurality opinion). 

III 

Best read, the BSA treats the failure to fle a legally compliant report as one violation carrying a maximum penalty 

of $10,000, not a cascade of such penalties calculated on a 
104 BITTNER v. UNITED STATES 

Barrett, J., dissenting 

per-account basis. Because the Fifth Circuit thought otherwise, we reverse its judgment and remand the case for further proceedings consistent with this opinion. 

So ordered. 

Justice Barrett, with whom Justice Thomas, Justice 

Sotomayor, and Justice Kagan join, dissenting. 

Alexandru Bittner, an American citizen, held as much as 

$16 million across more than 50 bank accounts in Romania, 

Switzerland, and Liechtenstein.* He acknowledges that the 

Bank Secrecy Act (BSA) and its implementing regulations 

required him to report his interest in these accounts to the 

Federal Government annually. Bittner also admits that he 

failed to comply with that requirement for fve consecutive 

years. Because he failed to report 272 accounts, the Government concluded that he violated the law 272 times and 

assessed a penalty for each violation. Bittner, on the other 

hand, argued that he violated the law just fve times—once 

for each annual form that he failed to fle. 

Page Proof Pending Publication

The Court agrees with Bittner and holds that the failure 

to fle a legally compliant form is a single violation, no matter 

how many accounts a citizen fails to report. I respectfully 

disagree. The most natural reading of the statute establishes that each failure to report a qualifying foreign account 

constitutes a separate reporting violation, so the Government can levy penalties on a per-account basis. 

I 

This case requires us to decide whether a violation of the 

BSA's reporting requirement is the failure to fle an annual 

form, or whether there is a separate violation for each indi-

*In 2007, for example, he held over $10 million across 61 foreign bank 

accounts. The pattern continued: $10 million across 51 accounts in 2008, 

$3 million across 53 accounts in 2009, $16 million across 53 accounts in 

2010, and $15 million across 54 accounts in 2011. 
Cite as: 598 U. S. 85 (2023) 105 

Barrett, J., dissenting 

vidual account that is not properly reported. The answer 

lies in the text of the relevant statutes, 31 U. S. C. §§ 5314 

and 5321. The Government assessed penalties against Bittner under § 5321(a)(5)(A), which provides that “[t]he Secretary of the Treasury may impose a civil money penalty on 

any person who violates, or causes any violation of, any provision of section 5314.” Section 5314, in turn, directs the 

Secretary to “require a . . . citizen of the United States . . . 

to keep records, fle reports, or keep records and fle reports, 

when the . . . person makes a transaction or maintains a 

relation for any person with a foreign fnancial agency.” 

§ 5314(a). The required “records and reports shall contain” 

certain information “in the way and to the extent the Secretary prescribes,” such as the identity, address, and legal capacity of the participants in a transaction or relationship. Ibid. 

The text of § 5314 indicates that its reporting requirement 

attaches to each individual account. Most notably, it provides that the Secretary “shall require” a citizen to “fle reports” when he “maintains a relation . . . with a foreign fnancial agency.” Ibid. The subject matter of the required 

reports, then, is “a relation” with a foreign fnancial agency— 

or, more colloquially, an account with a foreign bank. Ibid. 

In other words, each relation with a foreign bank triggers 

the requirement to fle reports. And because each relation 

is a matter of distinct concern under the statute, each failure 

to report an account violates the reporting requirement. 

Page Proof Pending Publication

The enumerated list of information that the reports “shall 

contain” underscores the point. Ibid. That list includes information like “the identity and address of participants in a 

. . . relationship,” “the legal capacity in which a participant” 

in a relationship “is acting,” and “the identity of real parties 

in interest.” §§ 5314(a)(1)–(3). Each listed item is account 

specifc because its contents can vary for each foreign account held. And each failure to report an account thus deprives the Government of the account-specifc information 

that the statute requires. 
106 BITTNER v. UNITED STATES 

Barrett, J., dissenting 

That is not all. Section 5314 authorizes the Secretary to 

impose a recordkeeping requirement in addition to a reporting requirement. Recordkeeping violations cannot occur on 

a per-form basis because keeping records does not entail fling a form. Instead, they occur on a per-account basis because records naturally relate to specifc accounts. And if 

violations of § 5314's recordkeeping obligation accrue on a 

per-account basis, the same should be true of violations of 

§ 5314's obligation to fle reports. The duties are parallel: 

Each kicks in “when” a citizen “maintains a relation” with a 

foreign fnancial agency, and each requires a person to collect 

the same account-specifc information. § 5314(a). Parallel 

duties should be susceptible to parallel violations. 

The civil penalty provisions in § 5321 confrm this reading 

of the substantive obligations imposed by § 5314. Recall 

that § 5321 allows the Secretary to “impose a civil money 

penalty on any person who violates, or causes any violation 

of, any provision of section 5314.” § 5321(a)(5)(A). The 

statute then proceeds to set the maximum penalty for nonwillful violations, provide a reasonable cause exception for 

those same violations, and set the maximum penalty for willful violations. §§ 5321(a)(5)(B)–(D). Throughout, Congress 

used the term “violation” in an account-specifc way. 

Page Proof Pending Publication

Consider the reasonable cause exception. It provides that 

“[n]o penalty shall be imposed . . . with respect to any” nonwillful “violation” of § 5314 if (1) “such violation was due to 

reasonable cause” and (2) “the balance in the account at the 

time of the transaction was properly reported.” § 5321(a) 

(5)(B)(ii) (emphasis added). By conditioning eligibility for 

the excuse on taking steps to report accurate information 

about a particular account, this language suggests that the 

underlying violation of § 5314 is similarly tied to a specifc 

account. After all, “if the exception for non-willful violations applies on a per-account basis, then logically the violations the exception forgives must arise on a per-account 

basis too.” 19 F. 4th 734, 747–748 (CA5 2021). 
Cite as: 598 U. S. 85 (2023) 107 

Barrett, J., dissenting 

The willful penalty provisions sing the same tune. The 

maximum penalty for a willful violation is the greater of 

$100,000 or, “in the case of a violation involving a failure to 

report the existence of an account or any identifying information required to be provided with respect to an account,” 

50 percent of “the balance in the account at the time of 

the violation.” §§ 5321(a)(5)(C)(i), (D)(ii). “This language 

makes clear that a violation may involve `a failure to report 

the existence of' ” a particular account. United States v. 

Boyd, 991 F. 3d 1077, 1089 (CA9 2021) (Ikuta, J., dissenting). 

By making the maximum penalty for a willful violation 

in some cases a function of “the balance in the account 

at the time of the violation,” the provision contemplates 

that discrete violations correspond to discrete accounts. 

§ 5321(a)(5)(D)(ii). 

This pattern matters. The “normal rule of statutory interpretation” is that “identical words used in different parts 

of the same statute are generally presumed to have the same 

meaning.” IBP, Inc. v. Alvarez, 546 U. S. 21, 34 (2005). If 

a “violation” of § 5314 has account-specifc connotations in the 

reasonable cause and willful penalty provisions, it follows 

that a “violation” of § 5314 has account-specifc connotations 

when it comes to nonwillful penalties too. 

Page Proof Pending Publication

The Secretary's implementing regulations follow the 

BSA's lead. They require regulated persons to report the 

existence of each foreign fnancial account to the Government 

each year. Start with 31 CFR § 1010.350 (2011). It says 

that “[e]ach United States person having a fnancial interest 

in . . . a bank, securities, or other fnancial account in a foreign country shall report such relationship to the Commissioner of Internal Revenue for each year in which such relationship exists and shall provide such information as shall be 

specifed in a reporting form prescribed under 31 U. S. C. 

5314 to be fled by such persons.” § 1010.350(a) (emphasis 

added). The reporting form is known as an FBAR—a Report of Foreign Bank and Financial Accounts. Ibid. A sep-
108 BITTNER v. UNITED STATES 

Barrett, J., dissenting 

arate regulation establishes the deadline for reporting these 

relationships. “Reports required to be fled by § 1010.350 

shall be fled” by “June 30 of each calendar year with respect to foreign fnancial accounts exceeding $10,000 maintained during the previous calendar year.” § 1010.306(c), as 

amended, 81 Fed. Reg. 76864 (2016). Put together, these 

provisions impose a substantive obligation to report interests in foreign bank accounts each year in which those interests exist. See § 1010.420 (referring to “accounts required 

by § 1010.350 to be reported to the” Government). 

Notably, the regulations distinguish between the form 

used to report accounts and the reports themselves. See 

§ 1010.306(d) (the “[r]eports required by” § 1010.350 “shall 

be fled on forms prescribed by the Secretary” (emphasis 

added)); § 1010.306(e) (the “[f]orms to be used in making 

the reports required by” § 1010.350 “may be obtained from” 

the Government (emphasis added)). This underscores that 

FBAR forms are not themselves the “reports” required by 

the statute; rather, they are the procedural mechanism used 

to implement the duty to report each foreign account. This 

distinction tracks § 5314, which emphasizes a citizen's duty 

to fle “reports” but nowhere mentions FBARs—or, for that 

matter, forms of any sort. § 5314(a). So far as § 5314 is concerned, the Secretary could have chosen a different mechanism to implement the statute. For instance, rather than 

instructing citizens to report all accounts on a single form, 

he could have instructed citizens to report each account on a 

separate form. And if the Secretary had taken that route, 

Bittner would be hard pressed to deny that he would have 

violated the statute 272 times by failing to fle 272 forms. 

That diffculty illustrates Bittner's fundamental misunderstanding of the account-specifc obligation imposed by § 5314, 

which is indifferent to the mechanism by which the obligation is discharged. 

Page Proof Pending Publication

In the end, “the applicable statute and regulations make 

clear that any failure to report a foreign account is an inde-
Cite as: 598 U. S. 85 (2023) 109 

Barrett, J., dissenting 

pendent violation, subject to independent penalties.” Boyd, 

991 F. 3d, at 1089–1090 (Ikuta, J., dissenting). A person who 

fails to report multiple foreign accounts on a single annual 

form violates the BSA and its implementing regulations multiple times, not just once. So the Government was within its 

rights to assess a separate penalty against Bittner for each 

qualifying foreign account that he failed to report properly. 

II 

A 

The Court reads the relevant provisions differently. It 

reasons that the legal duty imposed by § 5314 is “the duty to 

fle reports.” Ante, at 92. In the Court's view, that “statutory obligation is binary”: “Either one fles a report `in the 

way and to the extent the Secretary prescribes,' or one does 

not.” Ante, at 93. So penalties for nonwillful violations 

must “accrue on a per-report, not a per-account, basis.” 

Ante, at 94. And because Bittner failed to fle timely 

FBARs for fve years, the Court concludes that he violated 

the law only fve times. 

Page Proof Pending Publication

The Court's core error is to confate the reports referred 

to in § 5314 with the annual FBAR form. To reiterate, the 

two are distinct. And because the FBAR is not itself the 

statutorily required “report,” the Court's conclusion—that 

Bittner violated § 5314 just fve times because he untimely 

fled fve FBAR forms—does not follow. The BSA and its 

implementing regulations required Bittner to fle one report 

per year of each qualifying foreign fnancial account that he 

maintained. Each failure to report an account is a discrete 

violation regardless of whether the violations were clustered 

on a single form. 

The Court does not just misread § 5314; it misreads § 5321 

too. It points out that account-specifc language is present 

in the reasonable cause and willful penalty provisions but 

absent in the provisions setting the nonwillful penalty. Because “Congress generally acts intentionally when it uses 
110 BITTNER v. UNITED STATES 

Barrett, J., dissenting 

particular language in one section of a statute but omits it 

in another,” Department of Homeland Security v. MacLean, 

574 U. S. 383, 391 (2015), the Court takes the contrast as 

evidence that nonwillful penalties cannot apply on a peraccount basis. Ante, at 94–95 (invoking the expressio 

unius canon). 

Not so. The expressio unius canon is a general rule, inapplicable where context suggests otherwise—as it does 

here. Congress capped the penalty for a nonwillful violation 

at a fat $10,000. § 5321(a)(5)(B)(i). Because the penalty 

amount does not depend on the balance in an account, Congress had no reason to use account-specifc language. By 

contrast, the maximum penalty for a willful violation is the 

greater of $100,000 or 50 percent of the account balance at 

the time of the violation, and the reasonable cause exception 

lifts a penalty only if the account balance was properly reported. §§ 5321(a)(5)(B)(ii), (C)(i), (D)(ii). Because the application of both provisions depends on the account balance, 

Congress needed to use account-specifc language. The reason why Congress included account-specifc language in only 

two of these three provisions is therefore readily apparent. 

Regardless, the variation in language does not do much for 

the Court. These provisions in § 5321 explain the varying penalties that the Secretary may assess for a violation 

of § 5314 but do not alter the nature of the underlying conduct that constitutes a violation. Boyd, 991 F. 3d, at 1089 

(Ikuta, J., dissenting). That conduct, as discussed, is account specifc. 

Page Proof Pending Publication

B 

The Court also invokes a handful of “contextual clues” to 

support its conclusion. Ante, at 96. None of these “clues” 

justifes a departure from the best reading of the text. 

Begin with the Government's guidance to the public about 

what the BSA requires. The Court identifes a handful of 

statements, primarily from Internal Revenue Service (IRS) 

fact sheets and form instructions, indicating that a failure to 
Cite as: 598 U. S. 85 (2023) 111 

Barrett, J., dissenting 

fle an annual FBAR may result in a penalty of up to $10,000. 

The Court acknowledges that these materials do not control 

the analysis, yet it still goes on to suggest that they cut 

against the Government's interpretation. Ante, at 96–97. 

I am surprised that the Court is moved by this administrative guidance. For one thing, even Bittner concedes that 

the materials do not speak directly to the question presented 

in this case: whether additional penalties may accrue when 

a person fails to report multiple accounts on a single form. 

Reply Brief 18; Tr. of Oral Arg. 39–40. For another, the 

Court neglects to mention administrative materials that endorse the Government's per-account interpretation. See, 

e. g., Brief for American College of Tax Counsel as Amicus 

Curiae 18, 21 (identifying IRS staff guidance materials from 

2008 and 2015 explaining that FBAR penalties may be assessed per account). But in any event, guidance materials 

add little, if anything, to the interpretive enterprise when 

the traditional tools of construction supply an answer. 

Page Proof Pending Publication

The Court also highlights the Secretary's regulatory decision to allow the rare covered person with 25 or more foreign 

fnancial accounts to “only provide the number of fnancial 

accounts and certain other basic information on the report.” 

§ 1010.350(g)(1). According to the Court, this special rule is 

a knock against the Government's reading because it does 

not require detailed account-level information in such a fler's 

initial report. Ante, at 99. 

But the Secretary's accommodation does not advance the 

Court's cause. A person with 25 or more accounts still “will 

be required to provide detailed information concerning each 

account when so requested by the Secretary or his delegate.” 

§ 1010.350(g)(1). And the Secretary's recordkeeping regulation requires covered persons to retain the same detailed 

information about each account that otherwise would be reported on the annual form. See § 1010.420. So a person 

with 25 or more accounts violates the BSA for each account 

with a reporting or recordkeeping problem just the same as 
112 BITTNER v. UNITED STATES 

Barrett, J., dissenting 

a person with fewer than 25 accounts. In both cases, the 

violation is the failure to report the account properly or to 

keep records of it. 

That consequence is consistent with the statute's purpose. 

In arguing otherwise, the Court leans on what the preamble 

does not say: “[T]hat Congress sought to maximize penalties for every nonwillful mistake.” Ante, at 99. Notably, 

though, the Court skims over what the preamble does say: 

that the BSA is designed to “require certain reports or records” that assist the Government in “criminal, tax, or regulatory investigations” and in “intelligence or counterintelligence activities, including analysis, to protect against 

terrorism.” 31 U. S. C. § 5311(1). When analyzing complex 

webs of money laundering or funding for international terrorism, knowing about every account matters—and lacking 

information about 15 accounts is certainly more harmful to 

law enforcement than lacking information about 1 account. 

See Brief for United States 38. Given the stated purpose, 

authorizing a penalty for each undisclosed account makes 

sense. 

Page Proof Pending Publication

Finally, the Court insists that a per-account reading leads 

to absurd results. Its concerns range from the overstated 

to the incorrect, and they are in any event of limited relevance to the statutory interpretation question before us. 

First, the Court posits a comparison between a person who 

nonwillfully violates the law once by failing to report a single 

account with a balance of $10 million and a person who nonwillfully violates the law 12 times by failing to report 12 

accounts with an aggregate balance of $10,001. Because the 

frst is subject to a maximum penalty of $10,000 and the second is subject to a maximum penalty of $120,000, the Court 

concludes that there is an “incongruity” in the statutory 

scheme. Ante, at 100. But a person who violates the law 

many times might naturally pay a steeper price than a person who violates the law just once, regardless of the balances 
Cite as: 598 U. S. 85 (2023) 113 

Barrett, J., dissenting 

in their unreported accounts. Indeed, the Court seems untroubled by the incongruity that fows from its own reading: 

The Secretary is constrained by the same maximum penalty 

($10,000) for a person who nonwillfully fails to report 100 

accounts on an annual FBAR as he is for a person who nonwillfully fails to report just 1 account. The per-form reading makes it diffcult for the Government to assess stiffer 

penalties for more serious noncompliance. 

Consider next the Court's claim that, on the Government's 

reading, those who willfully violate the law may face lower 

penalties than those who nonwillfully violate the law. Ibid. 

The Court provides the example of a person who holds $1 

million in a foreign account during the course of a year but 

withdraws those funds before the fling deadline and willfully 

fails to report the account. Under § 5321(a)(5)(C), that person faces a maximum penalty of $100,000, while a person who 

nonwillfully fails to report 20 accounts with an aggregate 

account balance of $50,000 might face a penalty of up to 

$200,000 under § 5321(a)(5)(B)(i). This is not an apples-toapples comparison: The frst person willfully violated the law 

once, while the second nonwillfully violated the law 20 times. 

That the latter might face a higher penalty than the former 

is therefore beside the point. An actual apples-to-apples 

comparison shows that willful violators do face a much heavier fne: The maximum penalty for a single willful violation 

will always be at least 10 times greater than the maximum 

penalty for a single nonwillful violation. See §§ 5321(a) 

(5)(B)(i), (C)(i). 

Page Proof Pending Publication

III 

There is no denying that the Government opted to pursue 

a substantial penalty in this case: $10,000 for each of Bittner's 272 alleged violations, for a total penalty of $2.72 million. Yet while the statutory scheme allows for substantial 

penalties, it also offers a safe haven. No penalty shall be 

imposed for a nonwillful violation of § 5314 if (1) “such viola-
114 BITTNER v. UNITED STATES 

Barrett, J., dissenting 

tion was due to reasonable cause” and (2) “the balance in the 

account at the time of the transaction was properly reported.” § 5321(a)(5)(B)(ii). 

Bittner raised this defense below, and the Government 

conceded that he satisfed its second prong by properly reporting the balances in his accounts on his late-fled FBARs. 

19 F. 4th, at 740, and n. 2. But the District Court and Court 

of Appeals both roundly rejected Bittner's argument that he 

had reasonable cause for failing to timely report his accounts. 

After evaluating the pertinent facts and circumstances, both 

courts concluded that Bittner “did not exercise ordinary 

business care and prudence in failing to fulfll his reporting 

obligations.” Id., at 742; see also 469 F. Supp. 3d 709, 729 

(ED Tex. 2020). On the contrary, Bittner “put no effort into 

ascertaining” those obligations despite operating as a sophisticated business professional who held “interests in dozens 

of companies, negotiated purchases of Romanian government 

assets, transferred his assets into holding companies, and 

concealed his earnings in `numbered accounts.' ” 19 F. 4th, 

at 742. Bittner abandoned his reasonable cause argument 

when he came to this Court, so we have no occasion to consider its merit. Brief for Petitioner 11, n. 9. But the defense is available to litigants who can satisfy it. 

Page Proof Pending Publication

* * * 

The most natural reading of the BSA and its implementing 

regulations establishes that a person who fails to report multiple accounts on the prescribed reporting form violates the 

law multiple times, not just once. Because the Court declines to adopt that reading, I respectfully dissent. 
Page Proof Pending Publication

Reporter’s Note 

The attached opinion has been revised to refect the usual publication 

and citation style of the United States Reports. The revised pagination 

makes available the offcial United States Reports citation in advance of 

publication. The syllabus has been prepared by the Reporter of Decisions 

for the convenience of the reader and constitutes no part of the opinion of 

the Court. A list of counsel who argued or fled briefs in this case, and 

who were members of the bar of this Court at the time this case was 

argued, has been inserted following the syllabus. Other revisions may 

include adjustments to formatting, captions, citation form, and any errant 

punctuation. The following additional edits were made: 

None