              Case: 16-10914     Date Filed: 05/09/2018    Page: 1 of 4


                                                                   [PUBLISH]



                IN THE UNITED STATES COURT OF APPEALS

                         FOR THE ELEVENTH CIRCUIT
                           ________________________

                                 No. 16-10914
                           ________________________

                        D.C. Docket No. 1:15-cv-20884-UU


UNITED STATES OF AMERICA,

                                                                  Plaintiff-Appellee,

                                       versus

ESTELLE STEIN,
                                                                Defendant-Appellant.

                           ________________________

                    Appeal from the United States District Court
                        for the Southern District of Florida
                          ________________________

                                   (May 9, 2018)

Before WILLIAM PRYOR, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:

      Estelle Stein appeals the grant of summary judgment in favor of the United

States for unpaid federal income taxes, late penalties, and interest accrued for five

tax years. This appeal has evolved several times since Stein appealed. Bound by
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Mays v. United States, 763 F.2d 1295 (11th Cir. 1985), this panel initially affirmed

because Stein could offer only a self-serving affidavit to establish that she paid the

disputed assessments. But our Court later granted rehearing en banc and overruled

Mays in United States v. Stein, 881 F.3d 853 (11th Cir. 2018) (en banc). On

remand to the original panel, the parties now advance arguments that no longer

resemble the arguments they made to the district court. Because we are not a court

of first review, we vacate the judgment of the district court and remand to allow

the district court to consider the new arguments in the first instance.

      In 2015, the government sued Estelle Stein and moved for summary

judgment to reduce certain income tax assessments to judgment. It submitted

copies of her federal tax returns, transcripts of her accounts, and an affidavit from

an officer of the Internal Revenue Service. Stein responded with an affidavit that

attested that, “to the best of [her] recollection,” she had paid the taxes and penalties

owed for the years in question. But she acknowledged that she no longer had, and

could not obtain, bank statements to corroborate her account.

      The government prevailed in the district court on the theory that a taxpayer’s

self-serving affidavit is insufficient to defeat summary judgment. It argued that it

had made timely assessments and that those assessments were presumptively

correct. It then cited Mays and declared that “Stein’s self-serving uncorroborated

pleadings are insufficient to rebut th[at] presumption of correctness.” The district


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court agreed and granted summary judgment in favor of the government. It ruled

that Stein did not satisfy her burden to overcome the presumption of correctness

because “she did not produce any evidence documenting [her alleged] payments.”

      This panel affirmed. We cited Mays and explained that “Stein’s general and

self-serving assertions that she paid the taxes owed and related late penalties . . .

failed to rebut the presumption established by the assessments.” United States v.

Stein, 840 F.3d 1355, 1357 (11th Cir. 2016) (citing Mays, 763 F.2d at 1297). But

the full Court vacated the panel opinion and reheard the appeal en banc.

      The en banc Court overruled Mays. We held that “[a] non-conclusory

affidavit which complies with [Federal Rule of Civil Procedure] 56 can create a

genuine dispute concerning an issue of material fact, even if it is self-serving

and/or uncorroborated.” Stein, 881 F.3d at 858–59. But we cautioned that “a self-

serving and/or uncorroborated affidavit will [not] always preclude summary

judgment,” and we declined to decide whether “substantive federal tax law”

requires corroboration of a taxpayer’s affidavit. Id. at 859.

      On remand to the panel, the government dispenses with any reliance on

Mays but argues that it is still entitled to summary judgment. The government

contends that Stein’s affidavit fails to create a genuine issue of material fact about

her tax liability. For example, it maintains that Stein must “show that funds were

actually delivered to the [Internal Revenue Service]” to defeat summary judgment.


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      Because these arguments were never presented by the government to the

district court, we decline to consider them in the first instance. “[A]s a court of

appeals, we review claims of judicial error in the trial courts.” Access Now, Inc. v.

Sw. Airlines Co., 385 F.3d 1324, 1331 (11th Cir. 2004). “If we were to regularly

address questions . . . that district[] court[s] never had a chance to examine, we

would not only waste our resources, but also deviate from the essential nature,

purpose, and competence of an appellate court.” Id. Indeed, “[t]oo often our

colleagues on the district courts complain that the appellate cases about which they

read were not the cases argued before them.” Irving v. Mazda Motor Corp., 136

F.3d 764, 769 (11th Cir. 1998).

      We VACATE the summary judgment entered by the district court and

REMAND for further proceedings consistent with our en banc opinion.




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