                             NOT FOR PUBLICATION                         FILED
                     UNITED STATES COURT OF APPEALS                      MAY 19 2016
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                       No. 14-15987

              Petitioner - Appellee,             D.C. No. 3:13-cv-04088-EMC

    v.
                                                 MEMORANDUM*
 WEN-BING SOONG,

              Respondent - Appellant.

 UNITED STATES OF AMERICA,                       No. 14-15988

              Petitioner - Appellee,             D.C. No. 3:13-cv-04089-EMC

    v.

 HSIN-JUNG SHIRLEY SOONG,

              Respondent - Appellant.

                     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).
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
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
         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
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
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
       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.




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