Page 2 - United States v Edward Flume, Jr., Civ. 5:16-CV-73 (August 22, 2018)

Case 5:16-cv-00073 Document 56 Filed in TXSD on 08/22/18 Page 2 of 19

the Government now seeks to collect those outstanding penalties plus accrued interest, late-

payment penalties, and other fees. (Id. at 1.)

Now beforetheCourt is theGovernment’s motion for summary judgment. (Dkt. 51.) The

Government asks the Court to hold as a matter of law that Flume violated 31 U.S.C. § 5314

4
willfully and that he therefore owes the Government $507,025.16 plus accrued interest. (Id.,

Attach. 39.) BecauseFlumeadmitsthat hefailed to report hisUBSaccount in tax years2007 and

2008—and that he was required to do so—the only question is whether a reasonable factfinder

could conclude that this failure was not willful. (See id., Attach. 27 at 7–8.) The Government

argues that there is no genuine dispute about Flume’s willfulness. Specifically, it contends that

Flume was indisputably willful in one of two ways: he either (1) knowingly disregarded the

FBAR reporting requirements(Dkt. 51 at 18–21); or (2) recklessly disregarded ahigh probability

that he was breaking the law, even if he did not specifically know about his obligation to file

FBARs (Id. at 21–24). Flume, by contrast, argues that there is a genuine dispute about his

willfulness because he testified at his deposition that he was unaware of the FBAR filing

requirementsuntil 2010, when histax-return preparer first told him about therequirements. (Dkt.

54 at 2–3.) In response, the Government contends that Flume’s “self-serving testimony” cannot

defeat summary judgment. (Dkt. 55 at 2.) Finally, although Flume contends that he did not have

actual knowledge of the FBAR requirements, he does not explicitly contest the Government’s

assertion that he acted recklessly. (See Dkt. 54.) But he does state that he “reliedon[his]

professional tax preparer’sadvice” regarding hisfinancial reporting requirements. (Id. at 3.)

Having reviewed the record and the applicable law, the Court agrees with Flume.

4 This amount includes the penalties for 2007 and 2008 plus interest and a late-payment
penalty. (Dkt. 51, Attach. 37.)

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