[PUBLISH] In the United States Court of Appeals For the Eleventh Circuit

____________________

No. 22-14058 ____________________

UNITED STATES OF AMERICA, Plaintiff-Appellee, versus ISAC SCHWARZBAUM,

Defendant-Appellant.

____________________

Appeal from the United States District Court for the Southern District of Florida D.C. Docket No. 9:18-cv-81147-BB ____________________

Before JORDAN, LAGOA, and MARCUS, Circuit Judges. USCA11 Case: 22-14058 Document: 41-1 Date Filed: 01/23/2025 Page: 2 of 55

2 Opinion of the Court 22-14058

MARCUS, Circuit Judge: Appellee’s petition for panel rehearing is GRANTED. We VACATE our prior opinion in this case and substitute the following in its place: Isac Schwarzbaum is a wealthy naturalized citizen of the United States. He was born in Germany and holds significant wealth in numerous bank accounts in Switzerland and Costa Rica. The U.S. tax regime required Schwarzbaum to report any foreign bank accounts to the Internal Revenue Service (the “IRS”) using a form known as the FBAR. Although Schwarzbaum had read the FBAR filing instructions and engaged accountants to assist with his filings, he failed to report his foreign bank accounts to the IRS for years 2007–2009. After a bench trial, the district court found that Schwarz- baum violated the FBAR statutes recklessly, thus satisfying the stat- utes’ “willful” requirement for a higher penalty. The district court also found that the IRS had violated the FBAR statute in calculating the penalty because the IRS had used the wrong base numbers in calculating the statutory maximum. Rather than remanding to the IRS, however, the district court set aside the penalty and performed its own penalty calculation. This is the second time this matter has been before our Court. In United States v. Schwarzbaum, 24 F.4th 1355 (11th Cir. 2022) (“Schwarzbaum I”), a panel of our Court upheld the district court’s finding that Schwarzbaum’s reckless failure to file FBAR re- ports satisfied the statute’s “willfulness” requirement. The panel USCA11 Case: 22-14058 Document: 41-1 Date Filed: 01/23/2025 Page: 3 of 55

22-14058 Opinion of the Court 3

also held that the district court had erred by performing its own calculation of the penalty and, therefore, vacated the district court’s judgment and remanded with instructions to remand further to the IRS for a correct penalty calculation. The IRS recalculated the penalty, reaching a higher -- and, this time, correct -- penalty, and the Government again moved for enforcement in the district court. At the Government’s request, the district court retained jurisdiction over the case following its remand to the IRS and entered the same penalty as it had before remand. Schwarzbaum again appealed to this Court. This case presents essentially two categories of questions. The first set are procedural questions asking whether the district court can enforce the IRS’s recalculated penalties. These questions are easily answered: (1) the United States, as plaintiff in a civil case,