USA v. Eugene Niksich

FOR PUBLICATION
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 24-12882
____________________
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
EUGENE J. NIKSICH,
Defendant-Appellant.
____________________
Appeal from the United States District Court
for the Northern District of Georgia
D.C. Docket No. 1:22-cv-02411-SCJ
____________________
Before J ORDAN, L AGOA, and WILSON, Circuit Judges.
WILSON, Circuit Judge:
Defendant-Appellant Eugene Niksich appeals the district
court’s order granting the United States’ motion for summary judg-
ment, in which the court found that Niksich willfully failed to file
complete and accurate Reports of Foreign Bank and Financial
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2 Opinion of the Court 24-12882
Accounts (FBAR) from 2006 through 2012. Niksich argues that he
was unaware of the FBAR requirements until after the years at is-
sue and misunderstood that he needed to report his financial inter-
est in foreign accounts if the money was not invested. He alterna-
tively asserts that the district court incorrectly denied his motion
for summary judgment based on the affirmative defenses of accord
and satisfaction and equitable estoppel. Niksich also claims that the
FBAR penalties are subject to the Excessive Fines Clause of the
Eighth Amendment and remand is necessary to develop an appro-
priate factual record to determine if the fines were excessive.
We hold that the district court properly granted the govern-
ment’s motion for summary judgment. The court correctly found
that Niksich’s failure to properly report was willful and that the af-
firmative defenses did not apply. But the district court erred in find-
ing the FBAR penalties are not subject to the Excessive Fines
Clause of the Eighth Amendment. And we agree with Niksich that
remand is necessary on the excessiveness issue so that the parties
may develop a factual record and argue under the standard set in
United States v. Schwarzbaum, 127 F.4th 259 (11th Cir. 2025). Thus,
we affirm in part and reverse and remand in part.
I. FACTUAL BACKGROUND
Niksich is the founder and Chief Executive Officer (CEO) of
Unique Sporting Products, Inc. He has a bachelor’s degree in prod-
uct design and a master’s degree in business administration. In the
1990s, Niksich’s accountant advised Niksich to place his assets in a
Swiss account to protect from a potential judgment creditor.
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Acting on that advice, Niksich hired a foreign asset manager and
gave him authority to manage assets deposited in Niksich’s name,
as well as a limited power of attorney.
With the foreign asset manager’s help, Niksich opened a
Swiss bank account at AKB Privatbank Zurich AG (AKB). Niksich’s
bank statements were sent to his United States address. His AKB
account was under the alias “Misty,” Niksich’s dog. Niksich testi-
fied that he was told he needed to identify his account by a name
and was asked the name of his favorite pet without further expla-
nation. He paid a fee for the bank to hold his mail but testified that
he did not remember if he agreed to a mail hold and had “no idea”
about a fee. Niksich intentionally hid his AKB bank account from
his then-wife. Niksich denied that his accountant advised him of
any U.S. disclosure requirements regarding his account. Niksich
did not file timely FBARs for his AKB account. In 2010, acting on
the advice of others, Niksich moved his account to DZ Bank (DZ).
Niksich signed documents in connection with the DZ account but
says that he does not know if it was a numbered account and was
unaware of paying any fee for a mail hold arrangement.
Around 2011 Niksich opened a bank account at Ban Vivenda
Banca Privada (BVBP) in Panama in preparation to become a per-
manent resident. He also invested in a Panamanian housing project
and prepared to purchase a condo. In 2012, Niksich anticipated
closing his DZ account, and had his foreign asset manager sell se-
curities and wire the proceeds to his BVBP account.
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Niksich had always self-prepared his personal tax returns,
which were then reviewed by his accountant. Although he consist-
ently reported income from multiple different domestic invest-
ments, he did not disclose his foreign investments. For the related
period, Niksich filed Schedule B-Interest and Ordinary Dividends
with his federal income tax return, which included a question
about foreign interests. In 2006, he marked “No” in response to
whether he had any “interest in or signature authority over a finan-
cial account in a foreign country, such as a bank account, securities
account, or other financial account.” For tax years 2007-2012,
Niksich left the same question blank.
Niksich understood the Foreign Account Tax Compliance
Act (FATCA) to be a law that required disclosure of foreign ac-
counts to the Internal Revenue Service (IRS).1 He discussed
FATCA with other people, including his family, Panamanian bank
representatives, and a business associate.
Niksich testified that he first became aware of the FBAR re-
quirement around 2013 or 2014. In 2014, Niksich consulted with an
attorney and began a voluntary disclosure to the IRS to correct his
tax filings. He entered the IRS Offshore Voluntary Disclosure
1 The Foreign Account Tax Compliance Act was passed in 2010 and imposed
two requirements to combat tax evasion by U.S. persons with investments in
foreign accounts: (1) certain U.S. taxpayers holding foreign financial assets out-
side must report those assets to the IRS, and (2) foreign financial institutions
must report directly to the IRS certain information about financial accounts
held by U.S. taxpayers or foreign entities in which U.S. taxpayers held a sub-
stantial ownership interest. 26 U.S.C. § 6038D; 26 U.S.C. § 1471.
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24-12882 Opinion of the Court 5
Program (OVDP), which offers taxpayers with undisclosed income
from foreign assets a “compliance avenue to resolve income tax li-
abilities, various tax information reporting obligations relating to
foreign financial assets, and FBAR reporting requirements.”
Niksich then filed untimely FBARs that reported his interests in
each account.
His untimely FBARs reported the following information:
• in 2006, his securities account at AKB held a maximum of
$2,392,780;
• in 2007, his AKB securities account held a maximum of
$3,340,310;
• in 2008, his AKB securities account held a maximum of
$2,083,662;
• in 2009, his AKB securities account held a maximum of
$3,527,321;
• in 2010, his AKB securities account held a maximum of
$4,361,860;
• in 2010, DZ securities account held a maximum of
$4,573,907;
• in 2011, his DZ securities account held a maximum of
$3,603,058, while his two BVBP bank accounts held a maxi-
mum of $22,296 and $10,261;
• in 2012, his DZ securities account held a maximum of
$3,240,850;
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6 Opinion of the Court 24-12882
• in 2012, his two BVBP bank accounts held a maximum of
$2,338,021 and $1,010,666.
Niksich later filed amended FBARs for 2011 and 2012 ,reporting an
additional BVBP account. In both 2011 and 2012, the additional
bank account held a maximum of $4,000.
After filing his corrected returns, FBARs, and providing the
IRS with bank statements and other required documentation,
Niksich elected to opt out of the OVDP, which the IRS committee
approved in March 2017. In May 2018, Niksich’s file was assigned
to IRS agent Daniel Ford, who was being managed by Michael
Counts. Ford subsequently scheduled a meeting with IRS counsel
Brianna Taylor to discuss the facts of the case. In May 2019, Ford
and Taylor met with Niksich, his attorney, and a new accountant.
Taylor explained that the IRS was seeking to move forward with a
settlement via a closing agreement known as a Form 906. Ford cal-
culated a penalty of $419,123 to resolve the FBAR issues, which the
IRS examination team determined was reasonable and appropriate.
Ford then shared Form 906 with Niksich, explaining that it
had been approved and was ready for issuance. Form 906 identified
a miscellaneous penalty for $419,123. Between November 2019 and
February 2020, Niksich signed Form 906 and was instructed to pro-
vide payment. In February 2020, Ford received a check from
Niksich for $331,375.85.2 Ford testified that Niksich fulfilled his
2 The remaining $157,317.46 was a credit from an overpayment Niksich made
to the IRS in 2015.
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24-12882 Opinion of the Court 7
requirements for the settlement agreement and that his check was
processed. Ford also completed a Form 82783 stating the penalty
was $419,124, which was then approved by Counts.
In May 2020, the IRS Technical Services team was reviewing
Niksich’s case to ensure that the payment of the penalty had been
applied correctly from an administrative standpoint. In June 2020,
the IRS told Niksich that it would not enter into a settlement agree-
ment with him because Niksich had not opted out of OVDP but
was rather removed. During that call, Niksich requested the return
of the settlement. Ford later testified that it would be reasonable
for a taxpayer in Niksich’s position to expect a refund of the pay-
ment if the agreement would not be honored.
Later in June 2020, the IRS mailed Niksich a penalty assess-
ment of $2,286,954 for the willful failure to file complete and accu-
rate FBARs for 2006-2012 under 31 U.S.C. § 5321(a)(5). In July 2020,
Niksich timely responded through counsel, disputing the willful
penalty and requesting an appeals conference. Niksich reiterated
his request for the refund of his settlement payment. At the same
time, the IRS mailed a letter demanding payment of the $2,286,954
within thirty days. Niksich’s 2020 tax account transcript shows a
credit for the $419,124 amount paid.
3 Form 8278 is used internally to track and process miscellaneous civil penal-
ties.
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II. PROCEDURAL HISTORY
The United States sued Niksich to collect civil penalties for
his alleged willful failure to timely file FBARs. After discovery,
Niksich moved for summary judgment based on his affirmative de-
fenses of accord and satisfaction and equitable estoppel. The
United States also moved for summary judgment, asking the court
to find Niksich’s failure to timely file FBARs as reckless or willful as
a matter of law.
The district court granted the government’s motion and de-
nied Niksich’s. The district court found that Niksich was on inquiry
notice as to his duty to file FBARs because he self-prepared his tax
returns and signed them under penalty of perjury. His answer of
“no” to the foreign account inquiry in 2006 and leaving the inquiry
blank in 2007-2012 supported a finding of recklessness. Further in-
dicia of recklessness included opening foreign accounts to protect
funds from potential creditors, using an alias for foreign accounts
to hide his identity, paying a fee for the banks to hold his mail, and
engaging with banks that later signed prosecution agreements after
assisting American taxpayers in hiding from the IRS. The court re-
jected Niksich’s affirmative defense of accord and satisfaction by
concluding that actual authority is always required for an agree-
ment to bind the government, and there was none here. The court
also rejected his defense of equitable estoppel because (1) the IRS’s
retention of his payment did not amount to negligent or willful
conduct because Niksich did not present evidence showing he fol-
lowed administrative procedures for requesting a refund, and
(2) Niksich failed to show the IRS’s actions amounted to something
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24-12882 Opinion of the Court 9
more than governmental negligence or inaction. The court also
found that the Eighth Amendment does not apply to civil FBAR
penalties as a matter of law and that Niksich owed the IRS the full
penalty of $2,286,954. Niksich timely appealed.
III. STANDARD OF REVIEW
We review the district court’s order on summary judgment
de novo, “applying the same legal standard the district court used.”
McCabe v. Sharrett, 12 F.3d 1558, 1560 (11th Cir. 1994). In conduct-
ing our review, “we are required to view the evidence and all fac-
tual inferences therefrom in the light most favorable to the non-
moving party, and resolve all reasonable doubts about the facts in
favor of the non-movant.” Skop v. City of Atlanta, 485 F.3d 1130,
1143 (11th Cir. 2007) (internal quotation marks omitted). Thus,
“when conflicts arise between the facts evidenced by the parties,
we credit the nonmoving party’s version.” Evans v. Stephens, 407
F.3d 1272, 1278 (11th Cir. 2005) (en banc). Legal issues, such as
whether the district court applied the correct legal standard of will-
fulness, are also reviewed de novo. United States v. Rum, 995 F.3d
882, 887–88 (11th Cir. 2021) (per curiam).
For summary judgment, the key issue is “whether the evi-
dence presents a sufficient disagreement to require submission to a
jury or whether it is so one-sided that one party must prevail as a
matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251–52
(1986). “The evidence of the non-movant is to be believed, and all
justifiable inferences are to be drawn in his favor.” Id. at 255 (quo-
tation marks omitted).
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10 Opinion of the Court 24-12882
IV. WILLFULNESS
Niksich argues that because subjective evidence is used in
determining willfulness, willfulness itself is a factual issue that can
present a genuine dispute of material fact that precludes summary
judgment, and that it does so here. He argues that relying on his
accountant in opening the accounts, voluntarily disclosing his ac-
counts after becoming aware of the FBAR requirement, and his
own mistaken belief that non-trading investment assets need not
be reported, all demonstrate that he did not willfully violate the
law but misunderstood it.
Though willfulness has many meanings, willfulness gener-
ally denotes conduct that is intentional, knowing, or voluntary, as
distinguished from accidental conduct. See Rum, 995 F.3d at 888–
89. Willfulness can “characterize conduct marked by careless disre-
gard whether or not” one has the right to act. Id. at 889. “[W]here
willfulness is a statutory condition of civil liability, we have gener-
ally taken it to cover not only knowing violations of a standard, but
reckless ones as well.” Id. at 888. Willfulness includes reckless dis-
regard of a known or obvious risk, such as failing to investigate or
correct mismanagement after being notified that withholding taxes
have not been duly remitted. See id. at 889. Willfulness based on
recklessness is established if a defendant “(1) clearly ought to have
known that (2) there was a grave risk that an accurate FBAR was
not being filed and if (3) he was in a position to find out for certain
very easily.” Id. Significantly, “the appropriate standard of willful-
ness to warrant the FBAR penalty is . . . an objective standard: ac-
tion entailing an unjustifiably high risk of harm that is either known
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24-12882 Opinion of the Court 11
or so obvious that it should be known.” Id. at 890 (internal quota-
tion marks omitted).
We are unpersuaded by Niksich’s arguments and agree with
the district court that Niksich was reckless under Rum’s three-
prong test. See 995 F.3d at 889. He clearly ought to have known
that there was a grave risk an accurate FBAR was not being filed,
and he was able to find out for certain very easily. As an initial mat-
ter, Niksich’s argument that he did not willfully violate the law but
merely misunderstood it is insufficient to preclude summary judg-
ment under an objective standard. See Rum, 995 F.3d at 890.
We have held that a taxpayer’s self-serving affidavit, if it is
based on personal knowledge and not conclusory, can defeat sum-
mary judgment. See United States v. Stein, 881 F.3d 853, 857 (11th
Cir. 2018) (en banc). Niksich’s testimony, while relevant, cannot
defeat summary judgment here because (1) the willfulness stand-
ard for FBAR penalties is objective and (2) the objective facts show
willfulness. See United States v. Mississippi Valley Generating Co., 364
U.S. 520, 560–61 (1961) (“[E]ven assuming that Wenzell did not
think there was a conflict, that fact is irrelevant. . . . [T]he [conflict-
of-interest] statute establishes an objective, not a subjective, stand-
ard, and it is therefore of little moment whether [Wenzell] thought
he was violating the statute, if the objective facts showed that there
was a conflict of interest.”); Amlong & Amlong, P.A., v. Denny’s, Inc.,
500 F.3d 1230, 1241 n.1 (11th Cir. 2007) (although an attorney’s
state of mind is not irrelevant in assessing whether his conduct was
“objectively reckless,” the “absence of subjective bad faith does not
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12 Opinion of the Court 24-12882
excuse objectively blameworthy conduct”); United States v. Reyes,
164 F.4th 78, 90 (2d Cir. 2026) (explaining, in an FBAR penalty case,
that a “defendant’s subjective belief does not negate a finding of
recklessness or willful blindness”) (internal quotation marks and ci-
tation omitted).
The undisputed facts support a finding of willfulness.
Niksich testified that he opened the foreign account to protect him-
self from potential creditors and intentionally hid his foreign bank
account from his then-wife. He kept at least one foreign account in
his dog’s name, and he paid a fee for the foreign bank to hold his
mail. Niksich knew of and discussed FATCA with multiple other
people. Further, his professional experience and master’s degree in
business administration suggest he should have known about filing
FBARs.
The tax returns themselves also provide indicia of reckless-
ness. Niksich’s tax returns include Form 1040, in which Line 7a of
Schedule B asks if the taxpayer has any interest in a financial ac-
count in a foreign country, such as a bank account, securities ac-
count, or another financial account. The question is written in plain
language, using examples expressly identifying what needs to be
reported, and asks for a simple yes or no response. The self-pre-
pared nature of Niksich’s tax returns indicates that he “even more
probably read the instructions and would have seen Line 7a of
Schedule B” of his 2006 Form 1040 tax return. Rum, 995 F.3d at 890.
Any argument that Niksich was not aware of the FBAR require-
ments is undermined by his 2006 tax return, in which he actively
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24-12882 Opinion of the Court 13
answered Line 7a of Schedule B. Niksich responded “No” to the
2006 tax return question, followed by five years of leaving the ques-
tion blank. There is no record evidence showing that the omission
from 2007 to 2012 was accidental.
Aligning with the Rum factors, Niksich clearly ought to have
known about the FBAR requirement and was able to find out for
certain very easily. The language of the form that Niksich signed
under penalty of perjury makes this clear, as does Niksich’s per-
sonal conduct. Thus, because Niksich clearly met the willfulness
standard, we affirm the district court’s granting of summary judg-
ment as to this issue.
V. AFFIRMATIVE DEFENSES
Next, Niksich argues that the district court erred when it
found that he did not prove his affirmative defenses of accord and
satisfaction and equitable estoppel. We address each affirmative de-
fense in turn.
A. Accord and Satisfaction
Niksich contends that Agent Ford, Manager Counts, and IRS
Counsel Taylor bound the IRS to an accord and satisfaction by ne-
gotiating, approving, and accepting Niksich’s signed closing agree-
ment and settlement payment check. Niksich contends that he rea-
sonably relied on the signed agreement and retention of the money
as resolution of the dispute. He asserts that the IRS needed to re-
turn his settlement payment if it intended to repudiate the prior
agreement, and its retention of the payment implicates the author-
ity of the IRS entity itself.
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14 Opinion of the Court 24-12882
For an accord and satisfaction, when “an aggregate amount
is in dispute, the payment of a specified sum conceded to be due,
that is, by including certain items but excluding disputed items, on
condition that the sum so paid shall be received in full satisfaction,
will be sustained as an extinguishment of the whole.” Chi., Milwau-
kee, & St. Paul Ry. Co. v. Clark, 178 U.S. 353, 367 (1900). “Federal
courts use federal common law to evaluate government con-
tracts.” Begner v. United States, 428 F.3d 998, 1004 (11th Cir. 2005).
There are four other elements to look to in the formation of an
accord and satisfaction besides the payment itself: “(1) proper sub-
ject matter; (2) competent parties; (3) mutuality of assent; and
(4) consideration.” 5 Samuel Williston & Richard A. Lord, A Trea-
tise on the Law of Contracts § 73:29 (4th ed. 1993) (footnotes omitted);
Thomas Creek Lumber & Log Co. v. United States, 36 Fed. Cl. 220, 238
(1996).
“[A]nyone entering into an arrangement with the Govern-
ment takes the risk of having accurately ascertained that he who
purports to act for the Government stays within the bounds of his
authority. . . . [T]his is so even though, as here, the agent himself
may have been unaware of the limitations upon his authority.” Fed.
Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384 (1947). “The scope of this
authority may be explicitly defined by Congress or be limited by
delegated legislation, properly exercised through the rule-making
power.” Id.
The district court properly concluded that Niksich was not
entitled to summary judgment because while Niksich likely met
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24-12882 Opinion of the Court 15
the foundational requirements for an accord and satisfaction, the
IRS agents did not have actual authority to bind the IRS. The IRS
agents Niksich worked with communicated to Niksich that their
settlement agreement was final, as supported by the internal emails
between IRS Agent Ford and Counsel Taylor. Ford explicitly com-
municated to Niksich’s attorney that Form 906 had been approved
and was ready for issuance, after which Niksich appropriately
signed and returned the form and later provided a check for the
proposed settlement amount. In his deposition, Ford testified that
Niksich’s check had been processed, which seemed to constitute
acceptance on the government’s part. This all suggests that an ac-
cord and satisfaction took place.
But the IRS agents did not have actual authority to bind the
IRS. Merrill makes it clear that the scope of a government agent’s
authority must be explicitly defined by Congress or limited by del-
egated legislation, and that any reliance on a government agent’s
authority is limited by whether that agent had actual authority. 332
U.S. at 384.
Pursuant to 31 C.F.R. § 1010.810(g), the authority to enforce
the provisions of 31 U.S.C. § 5314 and 31 C.F.R. §§ 1010.350 and
1010.420 have been redelegated from FinCEN to the Commis-
sioner of Internal Revenue by means of a memorandum of under-
standing between FinCEN and the IRS.
The Internal Revenue Manual (IRM) 1.2.2.14.13(32)-(33)
(2019), which addresses enforcement of FBAR requirements, states
the authority “to enter into and approve a written agreement with
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16 Opinion of the Court 24-12882
any person relating to the person’s civil liability for an FBAR pen-
alty, other than an agreement to extend the period of limitations
on assessment or collection of civil FBAR penalties” is given to of-
ficials authorized to enter and approve closing agreements.
The statute addressing closing agreements, 26 U.S.C. § 7121,
does not list the officials and/or employees who can enter into such
agreements. The Treasury regulations on closing agreements and
compromises are also silent on that matter. See 26 C.F.R.
§§ 301.7121-1, 301.7122-1. But IRM 1.2.2.9.3 (14)-(15) (2019), which
listed the officials and employees to whom closing authority was
delegated, did not include examining or receiving IRS agents like
Agent Ford.4
Niksich argues that authority to settle by way of a closing
statement is determined by reference to federal common law. But
“even under principles of federal common law[, judgments or set-
tlements] depend on the actual authority of the person purporting
to compromise the claim.” Morgan v. South Bend Comm. School Corp.,
797 F.2d 471, 478 (7th Cir. 1986) (citing United States v. Beebe, 180
U.S. 343, 351–55 (1901)). And Niksich has cited no authority estab-
lishing that Agent Ford had actual authority under federal common
law to settle his FBAR penalties.
4 The IRM “does not have the force of law,” but it has “persuasive authority”
on the matters it addresses. Romano-Murphy v. Comm’r, 816 F.3d 707, 719 (11th
Cir. 2016).
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As the district court noted, the purported settlement agree-
ment notes that Ford was acting as the “Receiving Officer” and that
his signature merely indicated that he “examined the specific mat-
ters and recommend[ed] the acceptance of the proposed agree-
ment.’” Moreover, “[t]he signature line certifying that the ‘Com-
missioner of Internal Revenue’ has read and agreed to the terms of
the document [was] conspicuously blank.” From the face of the
document, it is clear that the agreement was not binding and that
Ford did not have actual authority.
B. Equitable Estoppel
Niksich argues that even if an accord and satisfaction was
not met, the government was estopped from pursuing additional
penalties because IRS representatives engaged in words, acts, and
conduct that caused Niksich to believe the settlement was final, ap-
proved, and that the dispute was over. The IRS’s refusing to return
Niksich’s settlement money constitutes affirmative misconduct.5
Niksich asserts that the government-specific elements of an estop-
pel claim are met because the IRS was acting in a proprietary ca-
pacity and the IRS representatives acted in the scope of their re-
sponsibilities.
The elements of equitable estoppel are: “(1) words, acts,
conduct or acquiescence causing another to believe in the existence
of a certain state of things; (2) willfulness or negligence with regard
5 The United States responded to this argument by pointing out that Niksich
only informally requested a refund and did not avail himself of the appropriate
procedures necessary to formally request a refund.
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18 Opinion of the Court 24-12882
to the acts, conduct or acquiescence; and (3) detrimental reliance
by the other party upon the state of things so indicated.” Tefel v.
Reno, 180 F.3d 1286, 1302 (11th Cir. 1999) (internal quotation marks
omitted). If available at all, estoppel against the government de-
pends on a showing of affirmative misconduct. Id. The Supreme
Court has never affirmed a finding of estoppel against the govern-
ment. See Off. of Pers. Mgmt. v. Richmond, 496 U.S. 414, 422–23
(1990).
The district court properly concluded that Niksich was not
entitled to summary judgment on his equitable estoppel claim.
Niksich does not meet the high bar required for an equitable estop-
pel claim against the government because he is unable to show af-
firmative misconduct. The IRS may have behaved poorly, but be-
cause Niksich did not file a formal refund request or file suit against
the government, the IRS retaining funds from the settlement pay-
ment despite Niksich’s informal requests is not the sort of affirma-
tive misconduct by the government that is required for equitable
estoppel. See IRM 4.26.17.4.4(9) (2025)6 (“Generally, to obtain a re-
fund, the person against whom the FBAR penalty was assessed
6 The government argued that Niksich failed to file an administrative refund
claim, rather than claiming he failed to file a suit against the government, be-
cause IRM 4.26.17.4.4(9) had not yet been published. IRM 4.26.17.4.4(9) exists
in the most current version of the IRM and is dated September 4, 2025, a
month before oral argument took place. The government could not have ar-
gued under the persuasive authority of the IRM because the section did not
yet exist. Nonetheless, Niksich did not pursue either of these formal proce-
dures to receive a refund, and as such, is not yet entitled to a refund.
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24-12882 Opinion of the Court 19
must file a refund suit against the government.”); cf. United States v.
Clintwood Elkhorn Mining Co., 553 U.S. 1, 14 (2008) (holding that a
taxpayer seeking a refund for a tax assessed in violation of the Ex-
port Clause must file a timely administrative refund claim before
bringing suit against the Government). Thus, even if Niksich detri-
mentally relied upon the agents’ words, acts, or conduct, he is un-
able to meet all of the elements for a claim of equitable estoppel.7
* * *
Thus, we determine that the district court did not err in
denying summary judgment on Niksich’s affirmative defenses of
accord and satisfaction and equitable estoppel. We affirm as to this
issue.
VI. EXCESSIVENESS
In United States v. Schwarzbaum, this court held that the Ex-
cessive Fines Clause of the Eighth Amendment applies to FBAR
penalties. 127 F.4th 259, 266 (11th Cir. 2025). But at the time that
the district court order was entered, this court had not issued its
decision in Schwarzbaum.
Niksich argues that since Schwarzbaum came out after the
district court’s order, the case should be remanded for factual de-
velopment on whether the penalty is unconstitutionally excessive
7 Niksich also argues that the district court put too great a weight on the con-
tents of the Internal Revenue Manual (IRM). However, upon review, the dis-
trict court appropriately looked to the IRM for guidance and did not solely rely
on the IRM as if it were law.
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20 Opinion of the Court 24-12882
because neither party had an occasion to brief the issue at the dis-
trict court level, as evidenced by the absence of the June 30 account
balances in the record. Niksich contends that the excessiveness is-
sue was decided by an appellate court in Schwarzbaum only because
the parties had a bench trial, which allowed them the full oppor-
tunity to present all relevant evidence. Since the government
moved for summary judgment specifically on whether the Exces-
sive Fines Clause applied, neither party presented relevant evi-
dence that would address excessiveness itself, such as facts related
to account balances, calculations of penalties, or harm caused by
defendant action. We agree. As such, we remand as to the exces-
siveness issue so the parties may have an opportunity to develop a
factual record.
VII. CONCLUSION
The district court properly found Niksich willfully violated
his statutory duty to file timely FBARs for the years of 2006-2012 as
a matter of law, and the affirmative defenses of accord and satisfac-
tion and equitable estoppel do not apply. Thus, we affirm the dis-
trict court on the issues of willfulness and Niksich’s affirmative de-
fenses. Finally, the district court incorrectly found that FBAR fines
are not subject to the Eighth Amendment’s Excessive Fines Clause,
so we reverse and remand so the parties may argue under the ap-
propriate standard.
AFFIRMED IN PART, REVERSED AND REMANDED IN
PART.
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