The wording comes from the IRS offshore compliance programs, since the tax code has no general definition. The streamlined filing compliance procedures require non-willful conduct. You certify it yourself, in a signed statement that gives the reasons you missed the returns or FBARs.
Willful conduct is the other side of the line. The IRS describes it as “the intentional, purposeful, deliberate act to hide income or assets.” The IRS directs taxpayers whose conduct was willful to its Criminal Investigation Voluntary Disclosure Practice. There, you must sign a statement admitting your conduct was willful.
The same line splits FBAR penalties. For penalties assessed on or after January 17, 2025, a non-willful failure is capped at $16,536 per report. A willful one can cost far more.
Signing the certification does not settle the question. The IRS can still audit the returns, and a finding of willful conduct exposes you to more penalties or criminal liability.
Sources
- IRS, Streamlined filing compliance procedures
- IRS, Criminal Investigation Voluntary Disclosure Practice
- 31 U.S.C. § 5321, Civil penalties
- 31 C.F.R. § 1010.821, Penalty adjustment and table
Reviewed and updated September 2026. General information, not advice for your situation.