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United States v. Pomerantz

United States District Court, W.D. Washington, Seattle

October 5, 2017

UNITED STATES OF AMERICA, Plaintiff,
v.
JEFFREY P POMERANTZ, Defendant.

          ORDER DENYING MOTION TO DISMISS

          Marsha J. Pechman United States District Judge

         The Court, having received and reviewed:

         1. Defendant's Motion to Dismiss for Failure to State a Claim and/or Lack of Personal Jurisdiction and/or to Strike Amended Complaint (Dkt. No. 19);

         2. Plaintiff's Response in Opposition to Defendant's Motion to Dismiss Amended Complaint (Dkt. No. 21); all attached declarations and exhibits; and relevant portions of the records, rules as follows:

         IT IS ORDERED that the motion to dismiss is DENIED.

         IT IS FURTHER ORDERED that the motion to strike portions of the amended complaint is DENIED.

         Nature of case

         The United States brings this action to collect civil penalties assessed against Defendant Jeffrey Pomerantz for failing to timely report his financial interest in foreign bank accounts during the years 2007 through 2009. Defendant allegedly owes $860, 300.35 in penalties.

         Nature of motion

         Mr. Pomerantz brings a motion (1) to dismiss the amended complaint for lack of personal jurisdiction under Federal Rule of Civil Procedure 12(b)(2); or (2) failure to state a claim under Rule 12(b)(6), and; (3) to strike portions of the amended complaint under Rule 12(f). Mr. Pomerantz also argues the amended complaint is barred by the doctrines of res judicata and collateral estoppel.

         Background

         On May 13, 2016, the United States filed a complaint against Mr. Pomerantz, seeking to collect civil penalties for Defendant's alleged failure to timely file a Treasury Form TD F 90-22.1 (“FBAR Form”) reporting his interest in foreign bank accounts on his annual United States tax filings during the years 2007 through 2009. Mr. Pomerantz is a United States citizen currently residing in British Columbia, Canada. Dkt. # 17 (“Amend. Compl.”), ¶ 2-3; Dkt. # 19 at 2.

         The foreign bank accounts at issue in this action include both Mr. Pomerantz's personal accounts-two checking accounts opened with the Canada Imperial Bank of Commerce (“CIBC Accounts”)-and accounts opened by Chafford Limited (five accounts with Sal Oppenheim JR & CIE AG in Switzerland; “Chafford Limited Accounts”). Id. ¶¶ 5, 8-10. The Government alleges that Chafford Limited is a corporation formed in the Turks and Caicos Islands that conducted no active business, but was simply a shell company used to hold and manage Mr. Pomerantz's personal investments. Amend. Compl. ¶ 7.

         On June 8, 2017, the Government's first complaint was dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6) for failing to state a claim upon which relief can be granted. Dkt. # 16. The Court, the Honorable James L. Robart presiding, held that the Government did not sufficiently allege that Mr. Pomerantz acted “willfully” in his failure to file FBAR Forms regarding his personal, CIBC, checking accounts. In particular, there were no allegations in the original complaint that Mr. Pomerantz had actual or constructive ...


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