United States of America v. Wen-Bing Soong

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
WEN-BING SOONG,
Respondent - Appellant.
No. 14-15987
D.C. No. 3:13-cv-04088-EMC
MEMORANDUM*
UNITED STATES OF AMERICA,
Petitioner - Appellee,
v.
HSIN-JUNG SHIRLEY SOONG,
Respondent - Appellant.
No. 14-15988
D.C. No. 3:13-cv-04089-EMC
Appeal from the United States District Court
for the Northern District of California
Edward M. Chen, District Judge, Presiding
Submitted May 10, 2016**
San Francisco, California
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
MAY 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

-- 1 of 7 --

2
Before: McKEOWN and FRIEDLAND, Circuit Judges and LEFKOW,*** Senior
District Judge.
Taxpayers Wen-Bing Soong and Hsin-Jung Shirley Soong, husband and
wife, appeal from the district court’s order denying their motion to dismiss two
related petitions to enforce Internal Revenue Service (IRS) administrative
summonses concerning their income tax liabilities for 2004 through 2007, and its
order granting the petitions. In both instances, they challenge personal
jurisdiction based on the alleged inadequacy of service of process. We have
jurisdiction under 28 U.S.C. § 1291. We may affirm on any ground supported by
the record, Muniz v. United Parcel Serv., Inc., 738 F.3d 214, 219 (9th Cir. 2013),
and we affirm.
The Soongs are lawful permanent residents of the United States who own a
home in Union City, California. Unbeknownst to the IRS when it attempted to
serve them at that home with summonses to produce information and records, and
contrary to numerous documents sent to the IRS and other government agencies,
the Soongs—according to declarations they filed after the IRS’s attempts at
service—had departed the United States for Taiwan and claimed to not intend to
*** The Honorable Joan H. Lefkow, Senior District Judge for the U.S.
District Court for the Northern District of Illinois, sitting by designation.

-- 2 of 7 --

3
return. The Soongs contend that the district court lacked personal jurisdiction
because the IRS failed to serve the district court summonses in Taiwan according
to Federal Rule of Civil Procedure 4(f)’s provisions, which they assert was
required as a result of the fact they were not located in the United States, and failed
to serve the administrative summonses under 26 U.S.C. § 7603(a).
1. Under Federal Rule of Civil Procedure 4, a person may be served in a
foreign country according to the provisions of Rule 4(f). Under subsection (e) of
Rule 4, a person may also be served in the United States by leaving a copy of the
summons and complaint at the individual’s dwelling or usual place of abode with
someone of suitable age, Fed. R. Civ. P. 4(e)(2)(B), or following state law for
serving a summons in the state where the district court is located, Fed. R. Civ. P.
4(e)(1). One manner of substituted service under the California Code of Civil
Procedure, after a good faith effort at personal service has been attempted,
involves:
leaving a copy of the summons and complaint at the person’s dwelling
house, usual place of abode, usual place of business, or usual mailing
address other than a United States Postal Service post office box, in the
presence of a competent member of the household or a person apparently
in charge of his or her office, place of business, or usual mailing address
other than a United States Postal Service post office box, at least 18 years
of age, who shall be informed of the contents thereof, and by thereafter
mailing a copy of the summons and of the complaint by first-class mail,

-- 3 of 7 --

4
postage prepaid to the person to be served at the place where a copy of
the summons and complaint were left.
Cal. Civ. Proc. Code § 415.20(b). The district court properly denied the Soongs’
motion to dismiss on the basis of insufficient service of process because the
Soongs failed to rebut the IRS’s prima facie factual showing that the Union City,
California address was their usual place of abode and usual mailing address.
The IRS’s evidence included public records from Alameda County;
California Department of Motor Vehicle records; and federal tax forms, state tax
forms, and correspondence with both federal and state authorities sent by the
Soongs, in which they repeatedly identified their Union City address as their
residence.1 The IRS also presented evidence that it had been corresponding by
mail with the Soongs at their Union City address for months preceding the issuance
of the summonses. The Soongs did not address the government’s robust evidence
or identify any communication to the IRS that their Union City address was no
1 For the first time on appeal, the parties raise the competency and reliability of
certain declarations submitted in the district court. Because neither party raised
these evidentiary objections in the district court, we deem them waived. See
United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990) (explaining that
to preserve an evidentiary issue for appeal, a party must make a timely and specific
objection to evidentiary issues before the trial court); see also Marbled Murrelet v.
Babbitt, 83 F.3d 1060, 1066-67 (9th Cir. 1996) (holding that a party waives an
objection by failing to request a ruling on the admissibility of the evidence before
the district court).

-- 4 of 7 --

5
longer their dwelling house, usual place of abode, or usual mailing address, but
instead merely offered declarations stating that Wen Bing and Hsin Jung had not
been physically present in the United States since July 2007 and September 2009,
respectively, and had opted to make Taiwan their “permanent home.” Their adult
son, Henry Soong, submitted a declaration to corroborate his parents’ declarations,
but he failed to contest the government’s testimony that an IRS agent had, after
first attempting to personally serve the summonses, delivered them to Henry at the
Union City address and informed him of the contents of the delivery, and that he
had informed the IRS agent that his parents were not there because they were
currently “traveling.”
The evidence supported the district court’s conclusions that the Soongs’
Union City address was one of their current dwellings, and that the IRS had
effectively served the summonses and petitions to enforce the summonses under
Rule 4(e)(2)(B) by leaving them with the Soongs’ adult son at the Union City,
California address.2 The evidence was also ample to show that the Union City
2 The Soongs do not argue that the district court erred by not holding an
evidentiary hearing. In fact, when the district court raised whether the factual
disputes required a hearing to permit the district court judge to weigh the evidence,

-- 5 of 7 --

6
address was the Soongs’ usual mailing address and that the IRS had effected
substituted service under California’s Code of Civil Procedure as permitted by
Rule 4(e)(1).
2. “To obtain enforcement of a[n IRS] summons, the Government has the initial
burden of establishing a prima facie case showing that: (1) the investigation will be
conducted for a legitimate purpose, (2) the inquiry is relevant to the purpose,
(3) the information sought is not already within the IRS’s possession, and (4) the
administrative steps required by the IRS Code have been followed.” United States
v. Richey, 632 F.3d 559, 564 (9th Cir. 2011) (citing United States v. Powell, 379
U.S. 48, 57-58 (1964)). “The government’s burden is a slight one, and may be
satisfied by a declaration from the investigating agent that the . . . requirements
have been met.” Id. (quoting United States v. Dynavac, Inc., 6 F.3d 1407, 1414
(9th Cir. 1993)). We review a district court’s summons-enforcement decisions for
clear error. Id. at 563. Substantial compliance with § 7603(a) is sufficient if the
IRS acted in good faith and the taxpayer is not prejudiced, such as when the parties
received actual notice. Richey, 632 F.3d at 565.
counsel for the Soongs told the district court that the issue could be decided on the
papers.

-- 6 of 7 --

7
Here, an IRS agent averred that all administrative steps required by the
Internal Revenue Code for issuance of the summonses had been taken, and the
district court agreed. The Soongs do not contest that the IRS satisfied the
substantive requirements for enforcement of the summonses, and instead argue
only that IRS’s service of the summonses was inadequate because they no longer
lived at the Union City address so could not be served there. For essentially the
same reasons supporting the district court’s service-of-process determination, the
district court did not clearly err in holding that the Soongs had failed to rebut the
IRS’s showing that the summonses were delivered to the Soongs in Union City at
their “last and usual place of abode.” 26 U.S.C. § 7603.
In any event, the Soongs were not prejudiced by any alleged defect in the
service of the summonses under § 7603 because they received actual notice of the
summonses, the government acted in good faith, and the district court provided
them an opportunity to respond on the merits. See Richey, 632 F.3d at 565 & 565
n.1.
AFFIRMED.

-- 7 of 7 --