9th Circuit Upholds Decision Compelling Importer to Comply with CBP's Summons

The U.S. Court of Appeals for the 9th Circuit on Nov. 2 rejected agricultural merchandise importer Ben Ghee Tan's rationale for not appearing before CBP to testify in an investigation over owed duties. Tan argued that CBP hadn't provided enough information about the subjects he was to be asked during testimony, as required by the statute. A three-judge panel at the 9th Circuit sided with a California district court in this case, rejecting Tan's interpretation of the text (United States v. Ben Ghee Tan, 9th Circ. #20-56399).

CBP said in a declaration that Tan and the companies he owns import merchandise into the U.S. and are being investigated by the agency "for the purpose of ascertaining the correctness of entries, determining liability for duties, taxes, fines, and penalties, and ensuring compliance with the laws or regulations." The summons seeks to get information relating to Tan's business practices while importing items to the U.S.

The statute requires the government to summon a person to appear "upon reasonable notice." The phrase "with reasonable specificity," however, only applies to when the summons require producing records, and not, as Tan would have liked, as to the terms of a summons for a testimony, the opinion said. "The panel rejected Tan’s assertion that the court borrow the requirements of Fed. R. Civ. P. 30(b)(6), which allows a party to notice the deposition of a corporation and to list proposed areas of inquiry, and further provides that such a notice must specify the areas of inquiry with 'reasonable particularity,'" the judges said.

Tan also asked the panel to look into the 1964 Supreme Court case, United States v. Powell, which established the substantive elements that government must provide when enforcing a summons. While the case was over an IRS summons, courts have applied the same conditions to administrative summonses issued by CBP. The 9th Circuit found that the case applies, but that CBP cleared the criteria laid out in the opinion, contrary to Tan's contention.