Case: 20-40597     Document: 00516110544         Page: 1     Date Filed: 11/30/2021




           United States Court of Appeals
                for the Fifth Circuit                               United States Court of Appeals
                                                                             Fifth Circuit

                                                                           FILED
                                                                   November 30, 2021
                                  No. 20-40597                        Lyle W. Cayce
                                                                           Clerk

   United States of America,

                                            Plaintiff—Appellee/Cross-Appellant,

                                      versus

   Alexandru Bittner,

                                          Defendant—Appellant/Cross-Appellee.


                  Appeal from the United States District Court
                       for the Eastern District of Texas
                            USDC No. 4:19-CV-415


   Before Owen, Chief Judge, and Clement and Duncan, Circuit Judges.
   Stuart Kyle Duncan, Circuit Judge:
         Alexandru Bittner non-willfully failed to report his interests in foreign
   bank accounts on annual FBAR forms, as required by the Bank Secrecy Act
   of 1970 (BSA) and regulations thereunder. See 

; 

, 1010.350. The government assessed $2.72 million in civil
   penalties against him—$10,000 for each unreported account each year from
   2007 to 2011. The district court found Bittner liable and denied his
   reasonable-cause defense. But it reduced the assessment to $50,000, holding
   that the $10,000 maximum penalty attaches to each failure to file an annual
   FBAR, not to each failure to report an account.
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                                         No. 20-40597


           We affirm the denial of Bittner’s reasonable-cause defense but reverse
   with respect to application of the $10,000 penalty. We hold that each failure
   to report a qualifying foreign account constitutes a separate reporting
   violation subject to penalty. The penalty therefore applies on a per-account,
   not a per-form, basis. On this point, we part ways with a recent Ninth Circuit
   panel, which split on this issue. See United States v. Boyd, 

,
   1080–86 (9th Cir. 2021) (adopting per-form interpretation). But see 

 at
   1086–91 (Ikuta, J., dissenting) (taking per-account view). 1 Accordingly, we
   affirm in part, reverse in part, vacate, and remand.
                                               I.
                                               A.
           In 1970, Congress enacted the BSA “to require certain reports or
   records where such reports or records have a high degree of usefulness in
   criminal, tax, or regulatory investigations or proceedings.” Currency and
   Foreign Transactions Reporting Act of 1970, 

, 

 (codified as amended at 

). A primary purpose of
   the BSA was to curb the “serious and widespread use” of foreign financial
   accounts to evade taxes. Cal. Bankers Ass’n v. Shultz, 

 (1974).




           1
             District courts have taken diverging views on this issue. Compare United States v.
   Giraldi, No. 20-2830 (SDW) (LDW), 

 (D.N.J. Mar. 16, 2021) (taking per-
   form view), and United States v. Kaufman, No. 3:18-CV-00787 (KAD), 

 (D.
   Conn. Jan. 11, 2021) (same), with United States v. Solomon, No. 9:20-82236-CIV, 

 (S.D. Fla. Oct. 27, 2021) (taking per-account view), and United States v. Stromme,
   No. 1:20-cv-24800-UU (S.D. Fla. Jan. 25, 2021) (same on default judgment). The Fourth
   Circuit has suggested it would take a per-form view. See United States v. Horowitz, 

 (4th Cir. 2020) (observing but not holding, in a case concerning willful violations,
   that “[a]ny person who fails to file an FBAR is subject to a maximum civil penalty of not
   more than $10,000” (citing 

(a)(5))). For the reasons explained infra, we
   find the decisions taking the per-form view unpersuasive.




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                                     No. 20-40597


          The BSA, as amended, provides in relevant part, “the Secretary of the
   Treasury shall require a resident or citizen of the United States . . . to keep
   records, file reports, or keep records and file reports, when the . . . person
   makes a transaction or maintains a relation for any person with a foreign
   financial agency.” 

(a). The BSA requires that the records
   and reports contain specific information “in the way and to the extent the
   Secretary prescribes.” 

 It directs the Secretary to consider “the need to
   avoid burdening unreasonably a person making a transaction with a foreign
   financial agency” when prescribing reporting and record-keeping
   procedures. 

          As directed, the Secretary promulgated several regulations. Two are
   relevant here. The first provides that each person with a “financial interest
   in . . . [a] financial 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 specified in
   a reporting form prescribed under 31 U.S.C. 5314 to be filed by such
   persons.” 

(a). A person is treated as having a “financial
   interest” in any foreign account that the person owns or that is owned by a
   corporation in which the person has an ownership interest greater than fifty
   percent. 

 § 1010.350(e)(1), (2)(ii). The prescribed reporting form is a
   Report of Foreign Bank and Financial Accounts, or “FBAR.” Id.
   § 1010.350(a). The second regulation provides: “Reports required to be filed
   by § 1010.350 shall be filed . . . on or before June 30 of each calendar year with
   respect to foreign financial accounts exceeding $10,000 maintained during
   the previous calendar year.” Id. § 1010.306(c).
          A person generally is required to disclose on an FBAR specific
   information about each qualifying foreign account. But when a person has a
   financial interest in twenty-five or more qualifying accounts, the person need
   only disclose the number of accounts. Id. § 1010.350(g)(1). Those who fall



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                                    No. 20-40597


   within this exception, however, are “required to provide detailed
   information concerning each account when so requested by the Secretary.”
   Ibid.
           The BSA authorizes the Secretary to “impose a civil money penalty
   on any person who violates, or causes any violation of, any provision of
   section 5314.” 

(a)(5)(A). Initially, only willful violations
   were subject to penalty. See § 207, 

. Congress added penalties
   for non-willful violations in 2004. See American Jobs Creation Act of 2004,
   

(a), 

 (codified at 

(a)(5)).
           Different penalties attach to non-willful and willful violations. For a
   non-willful violation, “the amount of any civil penalty imposed . . . shall not
   exceed $10,000.” 

(a)(5)(B)(i). But no penalty attaches if the
   “violation was due to reasonable cause” and “the balance in the
   account . . . was properly reported.” 

 § 5321(a)(5)(B)(ii). For a willful
   violation, the maximum penalty increases to the greater of $100,000 or fifty
   percent of “the amount of the transaction” (when a violation involves a
   transaction) or “the balance in the account at the time of the violation”
   (when a violation involves “a failure to report the existence of an account”).
   Id. § 5321(a)(5)(C)(i), (D). Willful violations are excluded from the
   reasonable-cause exception. Id. § 5321(a)(5)(C)(ii).
                                         B.
           Bittner was born in Romania in 1957. After serving in the Romanian
   army and earning a master’s degree in chemical engineering, he immigrated
   to the United States in 1982. He was naturalized in 1987.
           In 1990, Bittner returned to Romania, where he became a successful
   businessman and investor. He earned millions of dollars and acquired
   interests in a diverse array of companies, including real estate, hotels,




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                                     No. 20-40597


   restaurants, construction, aquaculture, logging, and manufacturing. He
   negotiated purchases of Romanian government assets and transferred his
   business assets, including title to several investment properties, to holding
   companies in London and Geneva.
          To manage his growing wealth, Bittner maintained dozens of bank
   accounts in Romania, Switzerland, and Liechtenstein, using “numbered
   accounts” “[t]o hide [his] name.” He used accountants to maintain financial
   records and ensure compliance with Romanian tax laws. But Bittner was
   unaware that as a United States citizen he had to report his interests in certain
   foreign accounts. Consequently, Bittner never filed FBARs while living in
   Romania.
          Bittner returned to the United States in 2011. Upon learning of his
   reporting obligations, he hired a CPA, who in May 2012 prepared and filed
   his outstanding FBARs. But those FBARs were deficient: they listed only his
   largest account and incorrectly stated he did not have an interest in twenty-
   five or more qualifying accounts. Bittner hired a new CPA, who in September
   2013 filed corrected FBARs for the years 2007 to 2011, as penalties for prior
   years were time-barred. See 

(b)(1). Although not required,
   Bittner disclosed with his corrected FBARs all foreign bank account
   information and balances. In June 2017, the IRS assessed $2.72 million in
   penalties against Bittner for non-willful violations of section 5314—$10,000
   for each unreported account from 2007 to 2011, specifically 61 accounts in
   2007, 51 in 2008, 53 in 2009, 53 in 2010, and 54 in 2011.
          In June 2019, the government sued to reduce these penalty
   assessments to judgment. Bittner pleaded in defense that his violations were
   due to reasonable cause and therefore could not be penalized under 

(a)(5)(B)(ii), that the maximum penalty allowed for a non-willful
   reporting violation under 

(a)(5)(B)(i) is $10,000 per annual




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                                    No. 20-40597


   FBAR form, and that the penalties as assessed violated the excessive fines
   clause of the Eighth Amendment. During discovery, Bittner admitted he was
   obligated to report 51 accounts in 2007, 43 in 2008, 42 in 2009, 41 in 2010,
   and 43 in 2011.
          The parties cross-moved for summary judgment on application of the
   $10,000 maximum penalty, with Bittner arguing for a per-form basis and the
   government arguing for a per-account basis. The government also moved for
   summary judgment on Bittner’s liability for $1.77 million in penalties—
   $10,000 for each admitted qualifying account from 2007 to 2010—arguing
   that Bittner did not qualify for the reasonable-cause exception for these years.
          The district court held that the $10,000 maximum penalty for a non-
   willful violation applies on a per-form basis. United States v. Bittner, 

, 717–26 (E.D. Tex. 2020). Having thus interpreted the statute,
   it deemed Bittner’s Eighth Amendment defense moot. 

 at 726–27. The
   court also granted summary judgment on Bittner’s liability for the years 2007
   to 2010, rejecting his reasonable-cause defense. 

 at 727–29. Bittner
   withdrew that defense as to the 2011 assessment, and the court entered
   judgment of $50,000—$10,000 for each year from 2007 to 2011. Both parties
   timely appealed.
                                         II.
          We review a summary judgment de novo. Ledford v. Keen, 

 (5th Cir. 2021) (citation omitted). Summary judgment is appropriate “if
   the movant shows that there is no genuine dispute as to any material fact and
   the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
   56(a). We view the evidence in the light most favorable to the nonmovant and
   draw all reasonable inferences in its favor. Adams v. Alcolac, Inc., 

 (5th Cir. 2020) (per curiam) (citation omitted). We review issues of




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                                         No. 20-40597


   statutory interpretation de novo. Solorzano v. Mayorkas, 

 (5th
   Cir. 2021) (citation omitted).
                                             III.
           We begin with Bittner’s argument that the district court erred in
   denying his reasonable-cause defense.
                                              A.
           As stated above, the BSA imposes no penalty for a non-willful viola-
   tion of section 5314 if “such violation was due to reasonable cause.” 

(a)(5)(B)(ii)(I). 2 The BSA and the pertinent regulations do not
   define “reasonable cause,” and so we must determine the phrase’s meaning.
   To do so, we consult reasonable-cause exceptions in the Internal Revenue
   Code (IRC). 3 Three cardinal principles of statutory interpretation support
   this approach.
           First, “reasonable cause” is a legal term of art. Denenburg v. United
   States, 

 (5th Cir. 1991). “[W]e assume that when a statute
   uses such a term, Congress intended it to have its established meaning.”
   McDermott Int’l, Inc. v. Wilander, 

 (1991) (citing Morissette
   v. United States, 

 (1952); and Gilbert v. United States, 

 (1962)). Specifically, “when Congress employs a term of art, it


           2
            The government does not dispute that Bittner properly reported the balances of
   his accounts on his corrected FBARs, thus meeting the second prong of this exception. See
   

(a)(5)(B)(ii)(II).
           3
              Most, if not all, courts to address a claim of reasonable cause under 

(a)(5)(B)(ii) have consulted the IRC for guidance. See, e.g., Kaufman, 

, at *3–4; United States v. Hidy, 

, 932 (D. Neb. 2020); United
   States v. Agrawal, No. 18-C-0504, 

, at *4 (E.D. Wis. Dec. 9, 2019); United
   States v. Ott, No. 18-cv-12174, 

, at *2 (E.D. Mich. Aug. 7, 2019); Jarnagin
   v. United States, 

, 376–77 (2017); Moore v. United States, No. C13-2063RAJ,
   

, at *4 (W.D. Wash. Apr. 1, 2015).




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                                    No. 20-40597


   presumably knows and adopts the cluster of ideas that were attached to each
   borrowed word in the body of learning from which it was taken.” F.A.A. v.
   Cooper, 

 (2012) (cleaned up) (quoting Molzof v. United
   States, 

 (1992)).
          Second, under the presumption of consistent usage, “a term generally
   means the same thing each time it is used.” United States v. Castleman, 

 (2014) (Scalia, J., concurring). The presumption applies not
   only to proximate terms but “also when different sections of an act or code
   are at issue.” Antonin Scalia & Bryan A. Garner, Reading
   Law: The Interpretation of Legal Texts 172 (2012) [Scalia
   & Garner]. The presumption is particularly relevant “when Congress
   uses the same language in two statutes having similar purposes.” Smith v.
   City of Jackson, 

 (2005) (plurality opinion). The reasonable-
   cause exceptions in the BSA and the IRC serve the same purpose: to provide
   “grounds for avoiding penalties for admitted violations of federal tax law.”
   Thomas v. UBS AG, 

 (7th Cir. 2013) (citing 

(c), (d); and 

(a)(5)(B)(ii)); see Tex. Workforce Comm’n
   v. U.S. Dep’t of Educ., 

 (5th Cir. 2020) (finding “particularly
   instructive” the interpretation of a term in a different statute with a
   “strikingly similar” purpose).
          Third, the prior-construction canon counsels that a term is to be
   understood according to earlier, well-settled constructions of the same term.
   See, e.g., Armstrong v. Exceptional Child Ctr., Inc., 

 (2015)
   (discussing canon); see also Scalia & Garner, supra, at 323 (“[W]hen a
   statute uses the very same terminology as an earlier statute—especially in the
   very same field . . . —it is reasonable to believe that the terminology bears a
   consistent meaning.”). Congress presumably was aware of settled judicial
   and administrative constructions of “reasonable cause” in the IRC when it
   amended the BSA in 2004 to add the non-willful penalty provision, including



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                                           No. 20-40597


   the reasonable-cause exception. See Huawei Techs. USA, Inc. v. FCC, 

 (5th Cir. 2021). Congress’s repetition of this term shows “the intent
   to incorporate its administrative and judicial interpretations as well.”
   Bragdon v. Abbott, 

 (1998) (citing Lorillard v. Pons, 

, 580–81 (1978)).
           Drawing on several reasonable-cause exceptions in the IRC and in reg-
   ulations and caselaw interpreting these exceptions, we conclude that the rea-
   sonable-cause exception in section 5321(a)(5)(B)(ii)(I) requires showing that
   the individual exercised ordinary business care and prudence, considering all
   pertinent facts and circumstances on a case-by-case basis. 4 This standard is
   objective. Lawinger v. Comm’r, 

 (1994); DiCarlo v. Comm’r,
   

, 

 (May 14, 1992). The taxpayer bears
   the “heavy burden” of establishing reasonable cause. United States v. Boyle,




           4
              See 

(c)(4)(B), 6038A(d)(3), 6038D(g), 6651(a), 6664(c)(1),
   6677(d); 

(k)(4) (“reasonable cause” exception under 

 “will be determined . . . under all the facts and circumstances”); 

 § 1.6038A-
   4(b)(2)(iii) (“reasonable cause” exception under 26 U.S.C. § 6038A “is made on a case-
   by-case basis, taking into account all pertinent facts and circumstances”); id. § 1.6038D-
   8(e)(3) (“reasonable cause” exception under 26 U.S.C. § 6038D “is made on a case-by-
   case basis, taking into account all pertinent facts and circumstances”); id. § 301.6651-
   1(c)(1) (“reasonable cause” exception under 

 requires a showing taxpayer
   “exercised ordinary business care and prudence,” considering “all the facts and
   circumstances of the taxpayer’s financial situation”); 

 § 1.6664-4(b)(1) (“reasonable
   cause” exception under 

 “is made on a case-by-case basis, taking into
   account all pertinent facts and circumstances,” with “the most important factor [being]
   the extent of the taxpayer’s effort to assess the taxpayer’s proper tax liability”); In re Wyly,
   

 (Bankr. N.D. Tex. 2016) (because “there are no regulations that
   specifically interpret the meaning of the phrase[] ‘reasonable cause’” in 

(d), courts tend to adopt the “ordinary business care and prudence” definition); see
   also Presley v. Comm’r, 

, 919 (10th Cir. 2019) (applying ordinary-business-
   care-and-prudence standard to “reasonable cause” exception in 

(f)(11)(A)(ii)(II), which is not defined by statute or regulation).




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                                         No. 20-40597


   

 (1985); accord Klamath Strategic Inv. Fund ex rel. St. Croix
   Ventures v. United States, 

 (5th Cir. 2009).
                                              B.
           Bittner argues, as a threshold matter, that a reasonable-cause defense
   cannot be determined at summary judgment because it involves a “deeply
   factual question.” We disagree. “[W]hether the elements that constitute
   ‘reasonable cause’ are present in a given situation is a question of fact, but
   what elements must be present to constitute ‘reasonable cause’ is a question
   of law.” Roberts v. Comm’r, 

 (5th Cir. 1988) (citing Boyle,
   

 n.8). While a reasonable-cause defense depends on all
   pertinent facts and circumstances, only disputed questions of material fact
   will preclude summary judgment. See Anderson v. Liberty Lobby, Inc., 

, 247–48 (1986); Smith v. Mobil Corp., 

, 1315–16 (5th Cir.
   1983). We have not hesitated to affirm summary judgments rejecting claims
   of reasonable cause based on undisputed facts. See Staff IT, Inc. v. United
   States, 

, 801–02 (5th Cir. 2007); Denenburg, 

. 5
           Turning to the merits of Bittner’s defense, having considered all per-
   tinent facts and circumstances, we conclude that Bittner did not exercise or-
   dinary business care and prudence in failing to fulfill his reporting obligations.
   We have emphasized that when assessing reasonable cause, “[t]he most im-
   portant factor is the extent of the taxpayer’s effort to assess his proper liabil-
   ity.” Brinkley v. Comm’r, 

 (5th Cir. 2015) (quoting Klamath,



           5
             See also, e.g., Baccei v. United States, 

, 1147–49 (9th Cir. 2011);
   Diamond Plating Co. v. United States, 

, 1038–39 (7th Cir. 2004); Kaufman,
   

, at *6, *8 (granting summary judgment where there were “no triable issues
   of fact concerning [defendant’s] reasonable cause defense” and noting that “several
   courts, in the context of defendants who failed to file FBARs, have rejected a reasonable
   cause defense at the summary judgment stage” (collecting cases)).




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                                     No. 20-40597


   

). Bittner conceded he put no effort into ascertaining and ful-
   filling his reporting obligations. He testified he never even inquired about
   them, and when asked why, he answered, “Why should I?,” “I didn’t feel
   like it,” and “Why? We’re in Romania.” The onus was on Bittner to find out
   what he was supposed to do, and yet he admittedly did nothing. Cf. Boyle, 

 (noting “Congress intended to place upon the taxpayer an obli-
   gation to ascertain the statutory deadline and then to meet that deadline”).
          As the district court observed, “Bittner was undoubtedly a
   sophisticated business professional.” Bittner, 469 F. Supp. 3d at 729. He 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.” He even once inquired
   about tax obligations “as a Romanian citizen . . . own[ing] property in
   Brussels” before purchasing investment properties. Bittner’s business savvy
   makes his failure to inquire about his reporting obligations even more
   unreasonable. See, e.g., Jarnagin, 

 (“A reasonable person,
   particularly one with the sophistication, investments, and wealth of the
   [plaintiff], . . . would have sought advice regarding [his] obligation to file [an
   FBAR].”).
          Bittner claims there are factual disputes that preclude summary judg-
   ment. We disagree. To be sure, he highlights undisputed facts he believes
   establish reasonable cause: he spoke little English; he had lived in the United
   States for only eight years; he had minimal contacts with the United States
   while living in Romania; he complied with Romanian tax laws; he was una-
   ware of his reporting obligations; and he promptly filed outstanding FBARs
   upon learning of his obligations. While relevant, these facts do not alter the
   conclusion that it was unreasonable for Bittner, a sophisticated businessman,
   not to ascertain his reporting obligations. See Boyle, 

 (“It




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                                         No. 20-40597


   requires no special training or effort to ascertain a deadline and make sure
   that it is met.”). 6
             Bittner points to an IRS Fact Sheet, which provides that “[r]easonable
   cause may be established if you show that you were not aware of specific
   obligations to file returns or pay taxes, depending on the facts and
   circumstances.” But “general statements of policy and rules governing
   internal agency operations or ‘housekeeping’ matters,” like the fact sheet,
   “do not have the force and effect of law, are not binding on the agency issuing
   them[,] and do not create substantive rights in the public.” Capitol Fed. Sav.
   & Loan Ass’n & Subsidiary v. Comm’r, 

, 216–17 (1991) (collecting
   cases).
             Finally, Bittner argues that the district court “misunderstood” the
   reasonable-cause standard by equating it with ordinary business care and
   prudence. We disagree. As discussed above, the ordinary-business-care-and-
   prudence definition of reasonable cause is derived from the IRC, regulations,
   and case law. See supra Section III.A. The district court correctly applied that
   standard in rejecting Bittner’s reasonable-cause defense.
                                             IV.
             We next consider the government’s argument that the district court
   erred in applying the $10,000 penalty to Bittner’s reporting violations. As
   explained above, section 5321(a)(5)(A) provides that the Secretary “may



             6
             See also, e.g., Hidy, 471 F. Supp. 3d at 933 (finding defendant failed to show
   reasonable cause where she “admit[ted] she made no effort to learn” about her reporting
   obligation, “research the issue,” or “seek professional advice or assistance”); Agrawal,
   

, at *5 (rejecting argument that defendant’s “naivety excuses him from
   exercising ordinary business care by seeking advice regarding his [reporting] obligation”
   where he had “sufficient mental acuity” to work as a math teacher and “sufficient financial
   savvy” to make specific requests regarding his investments).




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                                    No. 20-40597


   impose a civil money penalty on any person who violates, or causes any
   violation of, any provision of section 5314.” 

(a)(5)(A). The
   maximum penalty is $10,000. 

 § 5321(a)(5)(B)(i). Properly assessing the
   penalty hinges on what constitutes a “violation” of section 5314: the failure
   to file an FBAR (as urged by Bittner) or the failure to report an account (as
   urged by the government).
          When interpreting a statute, we begin with the text. United States v.
   Lauderdale County, 

 (5th Cir. 2019). “Interpretation of a
   word or phrase depends upon reading the whole statutory text, considering
   the purpose and context of the statute, and consulting any precedents or
   authorities that inform the analysis.” Calogero v. Shows, Cali & Walsh, L.L.P.,
   

, 584–85 (5th Cir. 2020) (quoting Dolan v. U.S. Postal Serv., 

 (2006)).
                                        A.
          The government argues the district court erred in determining what
   constitutes a “violation” under section 5314 by focusing on the regulations
   under section 5314 to the exclusion of section 5314 itself. We agree.
          The district court began its analysis by quoting a sentence from Shultz.
   See Bittner, 469 F. Supp. 3d at 718. There, the Supreme Court noted that the
   BSA’s “penalties attach only upon violation of regulations promulgated by
   the Secretary; if the Secretary were to do nothing, the Act itself would impose
   no penalties on anyone.” Shultz, 

. Relying on this statement,
   the district court focused on the regulations and concluded “it is the failure
   to file an annual FBAR that is the violation contemplated” by section




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                                        No. 20-40597


   5321(a)(5)(A). Bittner, 469 F. Supp. 3d at 718. 7 Bittner relies heavily on this
   reasoning on appeal.
           The Shultz snippet does not help define a “violation of[] any provision
   of section 5314” under section 5321(a)(5)(A). Cf. Smith v. Shettle, 

 (7th Cir. 1991) (“We must not be mesmerized by judicial language
   taken out of context and hardened into formula.”). Shultz did not interpret
   any penalty provision of the BSA, as we do here. Rather, it addressed
   constitutional challenges to the BSA and its regulations. Shultz, 

. The quoted sentence corrected the district court’s ripeness analysis—it
   explained the analysis should be limited to reporting requirements the
   Secretary actually imposed, not ones “[that] might have been imposed by the
   Secretary under the broad authority given him in the Act.” 

 at 63–64.
   Further, Congress amended section 5321(a)(5) to add penalties for non-
   willful violations thirty years after Shultz. See § 821, 

. And as
   we explain, a per-form interpretation is inconsistent with the text of the BSA
   and corresponding regulations. See United States v. Yankowski, 

 (9th Cir. 1999) (rejecting the “contention that [a] single statement by
   the Supreme Court, taken out of context, should be used . . . to reject the
   clear and express provisions of the [statute]”).
           Because section 5321(a)(5)(A) penalizes a “violation of[] any
   provision of section 5314,” our analysis begins with section 5314, not the
   regulations. “Congress generally acts intentionally when it uses particular
   language in one section of a statute but omits it in another.” Dep’t of
   Homeland Sec. v. MacLean, 

, 391 (2015) (citing Russello v. United
   States, 

 (1983)). Here, Congress did not refer to a “violation


           7
            The Ninth Circuit and the other courts taking a per-form view have relied on the
   same statement from Shultz. See Boyd, 

; Girardi, 

, at *5;
   Kaufman, 

, at *9.




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                                          No. 20-40597


   of a regulation prescribed under” section 5314 when it amended section
   5321(a)(5)(A) in 2004, even though earlier-enacted penalty provisions in
   section 5321 do. See 

(a)(1) (specifying “a violation of section
   5318(a)(2) of this title or a regulation prescribed under section 5318(a)(2)”);
   

 § 5321(a)(3) (imposing liability for “not filing a report under a regulation
   prescribed under section 5315”). This omission is instructive. We thus focus
   on the text of section 5314.
           Section 5314(a) “has both a substantive and procedural element.”
   Boyd, 

 (Ikuta, J., dissenting); see Solomon, 

,
   at *7–8. Substantively, it directs the Secretary to require a person to “file
   reports” when the person “makes a transaction or maintains a
   relation . . . with a foreign financial agency.” 

(a).
   Procedurally, “reports shall contain [certain] information in the way and to
   the extent the Secretary prescribes.” 

           The regulations themselves distinguish (1) the substantive obligation
   to file reports disclosing each account from (2) the procedural obligation to
   file the appropriate reporting form. Boyd, 

 (Ikuta, J.,
   dissenting); see Solomon, 

, at *7–8. Section 1010.350(a)
   implements the two distinct requirements: each person with a “financial
   account in a foreign country [1] shall report such relationship to the
   Commissioner of Internal Revenue for each year in which such relationship
   exists and [2] shall provide such information as shall be specified in a
   reporting form prescribed under 31 U.S.C. 5314 to be filed by such persons.”
   

(a) (emphasis added). 8 Section 1010.306(d) likewise


           8
             Bittner reads section 1010.350(a) differently. He argues the requirement to report
   a financial interest in a foreign account concerns “a Title 26 (income tax) obligation,” while
   the obligation to provide certain information in a reporting form “is a Title 31 (banking)
   requirement.” The district court similarly observed that the Secretary’s “implementing
   regulations contain separate income tax reporting requirements that are independent of the




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                                         No. 20-40597


   provides that “[r]eports required by” section 1010.350 “shall be filed on
   forms prescribed by the Secretary.” 

 § 1010.306(d). And the next
   subsection specifies where a person may obtain “[f]orms to be used in making
   the reports required by” section 1010.350. Id. § 1010.306(e). The regulations
   thus consistently implement the distinction between the reports themselves
   (substance) and the reporting forms (procedure).
            Together, then, the text of the BSA and its regulations impose (1) a
   statutory requirement to report each qualifying transaction or relation with a
   foreign financial agency and (2) a regulatory requirement to file these reports
   on an FBAR before a certain date each year (June 30). See id. § 1010.306(c);
   see also Boyd, 

 (Ikuta, J., dissenting); Solomon, 

, at *7–8. By authorizing a penalty for “any violation of[] any
   provision of section 5314,” as opposed to the regulations prescribed under
   section 5314, section 5321(a)(5)(A) most naturally reads as referring to the
   statutory requirement to report each account—not the regulatory
   requirement to file FBARs in a particular manner. Indeed, Schultz itself
   supports this reading. There, the Supreme Court explained that “[v]iolations
   of the reporting requirement of [section 5314] as implemented by the
   regulations are also subject to civil and criminal penalties.” Shultz, 

.




   FBAR reporting requirements.” Bittner, 469 F. Supp. 3d at 722 n.6 (citing Shultz, 

).
           This understanding of section 1010.350(a) is flawed. The Secretary promulgated
   section 1010.350(a) pursuant to her authority under 

 and other sections of
   the U.S. Code, none of which are in Title 26. See Amendment to the Bank Secrecy Act
   Regulations—Reports of Foreign Financial Accounts, 

, 10245 (Feb. 24,
   2011). Section 1010.350(a) does not interpret, apply, or otherwise correspond with any
   section of Title 26. See Off. of the Fed. Reg., Nat’l Archives & Recs.
   Admin., CFR Index and Finding Aids 973–78 (2021).




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                                           No. 20-40597


           The district court reasoned that a violation of section 5314 “attach[es]
   directly to the obligation that the statute creates—the filing of a single re-
   port.” Bittner, 469 F. Supp. 3d at 720. We disagree. Section 5314 does not
   create the obligation to file “a single report.” Rather, it gives the Secretary
   discretion to prescribe how to fulfill the statute’s requirement of reporting
   qualifying accounts. 9 Moreover, the district court’s reading would lead to a
   result unmoored from the text of section 5314: it would give the Secretary
   discretion not only to define the reporting mechanism, but also to define the
   number of violations subject to penalty. After all, the Secretary could require
   multiple FBARs instead of allowing one FBAR to report multiple accounts
   (as she has done). Streamlining the process in this way, however, cannot re-
   define the underlying reporting requirement imposed by section 5314. See
   Solomon, 

, at *7 (observing “the requirement to submit a
   form to reflect [required] information does not alter the substantive nature of
   the underlying duty to report financial interests/relationships”). It merely
   honors Congress’s desire “to avoid burdening unreasonably a person making
   a transaction with a foreign financial agency.” 

(a).
           Finally, Bittner argues there is no basis “to distinguish between the
   obligation to report and the form created for that purpose.” Again, the
   statute and its surrounding context refute this argument. As discussed, other
   provisions expressly penalize violations of the BSA’s regulations. If, when it
   amended section 5321(a)(5)(A), Congress meant to penalize a violation only
   of the regulations under section 5314 (i.e., the failure to file an FBAR), as


           9
              See 

(a) (emphasis added) (providing “reports shall contain
   [certain] information in the way and to the extent the Secretary prescribes”); United States v.
   Khan, No. 17-cv-7258(KAM) (VMS), 

, at *4 (E.D.N.Y. Sept. 23, 2019)
   (“Congress did not specify the form and substance of the report to be made in satisfaction
   of th[e] [reporting] requirement [but] vested the Secretary . . . with the authority to
   prescribe these specifics.”).




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                                     No. 20-40597


   opposed to a violation of section 5314 itself (i.e., the failure to report an
   account), “it could have done so clearly and explicitly.” Barnhart v. Sigmon
   Coal Co., 

 (2002); see United States v. Lawrence, 

, 392–93 (5th Cir. 2013) (considering disparate exclusion after statutory
   amendment). It did the opposite.
                                         B.
          The use of the term “violation” in other parts of section 5321(a)(5)
   confirms that the “violation” contemplated by section 5321(a)(5)(A) is the
   failure to report an account, not the failure to file an FBAR.
          We first consider the willful penalty provisions. Increased penalties
   attach to a willful “violation of[] any provision of section 5314.” 

(a)(5)(C). The maximum penalty for a willful violation is the greater of
   $100,000 or fifty percent of “the amount of the transaction” (when a
   violation involves a transaction) or “the balance in the account at the time of
   the violation” (when a violation involves “a failure to report the existence of
   an account”). 

 § 5321(a)(5)(C)(i), (D). This language plainly describes a
   “violation” in terms of a failure to report a transaction or an account. See
   Boyd, 

 (Ikuta, J., dissenting).
          It is a “basic canon of statutory construction that identical terms
   within an Act bear the same meaning.” Lexon Ins. Co. v. Fed. Deposit Ins.
   Corp., 

 (5th Cir. 2021) (quoting Est. of Cowart v. Nicklos
   Drilling Co., 

 (1992)); see Scalia & Garner, supra, at
   170–73 (discussing presumption of consistent usage). If a willful violation of
   section 5314 in subsection (C) involves failing to report a transaction or an
   account, then presumably so too does a non-willful violation of section 5314
   in subsection (A). To be sure, the presumption of consistent usage yields
   when “there is such variation in the connection in which the words are used
   as reasonably to warrant the conclusion that they were employed in different




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                                     No. 20-40597


   parts of the Act with different intent.” Gen. Dynamics Land Sys., Inc. v. Cline,
   

 (2004) (quoting Atl. Cleaners & Dyers, Inc. v. United States,
   

 (1932)). But nothing in section 5321 suggests Congress
   meant to define “violation” one way where a person acts willfully and
   another way where a person does not. See Boyd, 991 F.3d at 1090–91 (Ikuta,
   J., dissenting).
          The district court drew the opposite inference, reading the willful
   penalty provisions to support a per-form theory. See Bittner, 469 F. Supp. 3d
   at 719–21. It reasoned that only the willful penalty provision references the
   “account,” and so the penalty for non-willful violations could not relate to
   specific accounts. 

 at 720–21. We disagree. There is a good reason for the
   different phrasing of the respective penalties, and it has nothing to do with
   the definition of a “violation.” The amount of a willful penalty may depend
   on the “balance” in the unreported account, see 

(a)(5)(C)(i),
   (D), unlike a non-willful penalty, which is capped at $10,000, see 

   § 5321(a)(5)(B)(i). So, Congress had no reason to refer to the “account” in
   the non-willful penalty provision. This different phrasing does not affect the
   definition of “violation,” which, as already explained, means the same thing
   whether willful or non-willful.
          We next consider the reasonable-cause exception. No penalty attaches
   to a non-willful violation if “such violation was due to reasonable cause” and
   “the amount of the transaction or the balance in the account at the time of
   the transaction was properly reported.” Id. § 5321(a)(5)(B)(ii). This lan-
   guage equates a “violation” with failing to report the amount of the transac-
   tion or the balance in an account. See Solomon, 

, at *9 (not-
   ing “this exception speaks in account-specific terms—not form-specific
   terms”). Specifically, the definite article “the” before the singular “transac-
   tion” and “account” suggests that the “violation” excused for reasonable




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                                         No. 20-40597


   cause relates to a single transaction or account. 10 If “violation” in section
   (a)(5)(B)(ii) is transaction- or account-based, then “violation” in section
   (a)(5)(A) presumably is too. See Scalia & Garner, supra, at 170–73.
   Nothing in the text suggests Congress intended otherwise.
           Bittner argues that “the statutorily permissible excuse for non-com-
   pliance is completely independent from the violation itself.” We disagree.
   Neither the statute’s text nor its structure separates the excuse from the vi-
   olation. To the contrary, 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. Framed in terms of “the transaction” and
   “the account,” the reasonable-cause exception most naturally reads as ex-
   cusing the failure to report a transaction or account, not the failure to file an
   FBAR. This reading supports our view that the underlying “violation” in
   section 5321(a)(5)(A) cannot be read on a per-form basis.
                                               C.
           Bittner’s remaining arguments lack merit. He claims that, as a penal
   tax statute, section 5321(a)(5)(A) should be strictly construed against the
   government. It is a “‘longstanding canon of construction’ that if ‘the words
   of a tax statute are doubtful, the doubt must be resolved against the govern-
   ment and in favor of the taxpayer.’” United States v. Marshall, 

 (5th Cir. 2015) (collecting cases); accord Comm’r v. Acker, 

, 91


           10
                See Evanto v. Fed. Nat’l Mortg. Ass’n, 

 (11th Cir. 2016)
   (“[S]ections 1638 and 1641 connote one particular document by using a definite article
   (‘the’) and a singular noun (‘disclosure statement’).” (citing Rumsfeld v. Padilla, 

 (2004))); United States v. Grimes, 

 (8th Cir. 2012) (“Congress’s
   use of the definite article ‘the’ followed by the singular noun ‘court’ suggests that the
   phrase ‘the court’ refers to a single district court, rather than all ninety-four district
   courts . . . .”); Renz v. Grey Advert., Inc., 

 (2d Cir. 1997) (“Placing the
   article ‘the’ in front of a word connotes the singularity of the word modified.”).




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                                         No. 20-40597


   (1959). This canon, which has been amply criticized, 11 does not apply here
   because the text of sections 5321(a)(5) and 5314 and of the regulations leaves
   no doubt that each failure to report an account is a separate violation of sec-
   tion 5314 subject to penalty.
           In a similar vein, Bittner invokes the rule of lenity. This rule “requires
   ambiguous criminal laws to be interpreted in favor of the defendants
   subjected to them.” United States v. Santos, 

 (2008)
   (collecting cases). It applies in civil cases where a law “has both criminal and
   noncriminal applications.” Leocal v. Ashcroft, 

, 11 n.8 (2004); see
   United States v. Thompson/Ctr. Arms Co., 

, 517–18 & n.10 (1992)
   (plurality opinion). The rule does not apply here because the statute is not
   ambiguous and the non-willful penalty provision has no criminal application.
   Cf. 

(a)–(b) (imposing criminal penalties only for willful
   violations).
           Additionally, Bittner maintains (and the district court agreed) that a
   per-account reading would lead to “absurd results.” See Bittner, 469 F. Supp.
   3d at 721–23. We disagree. Statutes generally should be construed to avoid
   an absurd result, Martinez v. Mukasey, 

 (5th Cir. 2008)—
   meaning, one “no reasonable person could intend,” Scalia & Garner,



           11
              See, e.g., White v. United States, 

 (1938) (noting “[i]t is the
   function and duty of courts to resolve doubts,” and seeing “no reason why that function
   should be abdicated in a tax case more than in any other [case]”); see also Anita S.
   Krishnakumar, Reconsidering Substantive Canons, 

, 826–27 (2017)
   (noting “popular belief” that substantive canons of statutory interpretation “act as an
   ‘escape valve’ that helps textualist judges eschew, or ‘mitigate,’ the rigors of textualism”
   and “reject statutory readings dictated by other tools of construction in favor of readings
   based on external policy considerations”); Antonin Scalia, A Matter of
   Interpretation: Federal Courts and the Law 27–29 (Amy Gutmann ed.,
   1997) (decrying substantive canons as “dice-loading rules” and questioning “where the
   courts get the authority to impose them”).




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                                           No. 20-40597


   supra, at 237. But we see no absurdity here. Congress’s central goal in
   enacting the BSA was to crack down on the use of foreign financial accounts
   to evade taxes. It is not absurd—it is instead quite reasonable—to suppose
   that Congress would penalize each failure to report each foreign account. See
   Shultz, 416 U.S. at 27–29 (noting the “debilitating effects” of secret offshore
   accounts on the American economy, including hundreds of millions in lost
   tax revenue). 12
           As a last resort, Bittner turns to legislative history. But “mining
   legislative history . . . is highly disfavored in the Fifth Circuit . . . .” Thomas
   v. Reeves, 

, 817 n.45 (5th Cir. 2020) (en banc) (Willett, J.,
   concurring) (emphasis omitted) (collecting cases). In any event, the
   legislative history Bittner cites is unilluminating.
                                       *        *         *
           The text, structure, history, and purpose of the relevant statutory and
   regulatory provisions show that the “violation” of section 5314 contemplated
   by section 5321(a)(5)(A) is the failure to report a qualifying account, not the
   failure to file an FBAR. The $10,000 penalty cap therefore applies on a per-
   account, not a per-form, basis.




           12 Nor is there any absurdity, as Bittner supposes, in the fact that the FBAR filing
   requirement is triggered not by how many foreign accounts someone has, but by whether
   their aggregate value exceeds $10,000. See 

(c); see also Bittner, 469 F.
   Supp. 3d at 720 (agreeing with Bittner on this point). People holding less than $10,000
   abroad are likely not using foreign accounts to evade taxes. Or so the government might
   reasonably think. And so it makes sense for the government not to require those people to
   file FBARs. The $10,000 aggregate threshold aims “to avoid burdening unreasonably”
   people holding relatively small amounts of money abroad. 

(a).




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                                   No. 20-40597


                                       V.
         We AFFIRM the summary judgment on Bittner’s liability and failure
   to establish a reasonable-cause defense under 

(a)(5)(B)(ii);
   REVERSE the summary judgment for Bittner on application of the $10,000
   penalty cap to his non-willful violations of 

; and VACATE
   and REMAND for further proceedings consistent with this opinion.




                                       23