             Case: 16-10914     Date Filed: 11/04/2016   Page: 1 of 11


                                                                         [PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                 No. 16-10914
                             Non-Argument Calendar
                           ________________________

                       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
                         ________________________

                                (November 4, 2016)

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

PER CURIAM:

      Estelle Stein appeals the summary judgment in favor of the United States for

unpaid federal income taxes, late penalties, and interest accrued for tax years 1996
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and 1999 through 2002. Stein argues that the district court erred because her

affidavit created a genuine factual dispute about whether she had paid the taxes and

penalties owed. The government responds that Stein’s conclusory affidavit was

insufficient to rebut the presumption that its assessment was valid. The government

also requests that we remand for the district court to revise its judgment to credit

Stein for a $548 payment for tax year 1996. We affirm the entry of summary

judgment regarding Stein’s liability, but we vacate that part of the judgment

computing the amount of the assessments and remand for the district court to

recalculate the assessment against Stein for tax year 1996.

      We review de novo a summary judgment and view the evidence in the light

most favorable to the nonmovant. “If the party seeking summary judgment meets

the initial burden of demonstrating the absence of a genuine issue of material fact,

the burden then shifts to the nonmoving party to come forward with sufficient

evidence to rebut this showing with affidavits or other relevant and admissible

evidence.” Avirgan v. Hull, 932 F.2d 1572, 1577 (11th Cir. 1991). When the

evidence presented by the nonmoving party “is merely colorable, or is not

significantly probative, summary judgment may be granted.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 249–50 (1986) (citations omitted).

      The district court did not err by entering summary judgment in favor of the

United States. The United States submitted copies of Stein’s federal tax returns,


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transcripts of her accounts for tax years 1996 and 1999 through 2002, and an

affidavit from Officer Michael Brewer of the Internal Revenue Service that

established Stein had outstanding tax assessments. This evidence created a

presumption that the assessments were proper and shifted the burden to Stein to

rebut the presumption with evidence that the assessments were erroneous. See

United States v. White, 466 F.3d 1241, 1248–49 (11th Cir. 2006). Stein submitted

an affidavit stating that she “retained an accounting firm to file . . . tax returns for

[her]”; she “recalled” paying “the tax, including late penalties, for each unfiled tax

return”; and she “no longer [had] . . . bank statements in her possession” and could

not obtain statements from her bank to “prove [her] payments made to the IRS.”

But Stein’s affidavit failed to create a genuine factual dispute about the validity of

the assessments. Stein did not dispute that she owed interest accrued on her belated

filings and payments for tax years 1999 through 2002. And Stein’s general and

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

tax years 1996 and 1999 through 2002 failed to rebut the presumption established

by the assessments. See Mays v. United States, 763 F.2d 1295, 1297 (11th Cir.

1985) (a taxpayer’s claim “must be substantiated by something other than . . . self-

serving statements”).

      The United States requests that we remand for the district court to credit

Stein for a tax payment. In its filings, the United States acknowledged that Stein


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had remitted $548 that applied to her assessment for tax year 1996. The district

court failed to account for Stein’s payment when computing her tax liabilities. We

vacate that part of the judgment addressing the amount of Stein’s assessments and

remand for the district court to credit Stein’s payment and to recalculate her

assessment for tax year 1996.

        We AFFIRM the entry of summary judgment regarding Stein’s liability, but

we VACATE that part of the judgment computing the amount of the assessments

and REMAND for the district court to recalculate Stein’s assessment for tax year

1996.

        AFFIRMED IN PART, VACATED IN PART, AND REMANDED.




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JORDAN, Circuit Judge, joined by WILLIAM PRYOR, Circuit Judge, concurring:

      We are bound by our decision in Mays v. United States, 763 F.2d 1295, 1297

(11th Cir. 1985), a summary judgment case holding that self-serving statements in

a taxpayer’s affidavit, without more, are insufficient to genuinely dispute the

presumption that the government’s tax assessment is correct.             I therefore

reluctantly agree that we must affirm the district court’s grant of summary

judgment.

      I write separately, however, because the cases upon which Mays relies arise

in the post-trial context, where the standard of review is much more deferential

than at the summary judgment stage. The principle articulated in Mays has no

place in a summary judgment posture. And I believe that the single precedent

supporting Mays’ analytical leap, Heyman v. United States, 497 F.2d 121 (5th Cir.

1974), was itself wrongly decided.

                                          I

      In support of the proposition that uncorroborated, self-serving testimony by

a taxpayer cannot create an issue of fact to defeat summary judgment, Mays cites

two non-summary judgment cases. Neither one justifies the ruling in Mays.

      The government in Griffin v. United States, 588 F.2d 521 (5th Cir. 1979),

sought to set aside a jury verdict finding a taxpayer liable for less than the amount

claimed by the government on the basis that the taxpayer had “introduced no


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evidence other than his own uncorroborated testimony supporting an estimate of

tax liability lower than the government’s, thus failing in his burden of rebutting the

government’s estimate of liability.” Id. at 523–24. The Fifth Circuit, in dicta,

agreed with the general principle articulated by the government, but denied relief

because other evidence introduced at trial had corroborated the taxpayer’s

testimony. See id. at 529–30.

      Similarly, in Gibson v. United States, 360 F.2d 457 (5th Cir. 1966), a

taxpayer appealed unfavorable factual findings made by the district court at his

bench trial, arguing primarily that the court erred by disregarding the tax liability

calculations in his “excise tax journal” and the testimony he had offered in support.

Id. at 458–60. The Fifth Circuit held that the district court’s findings were not

clearly erroneous and explained that the taxpayer’s self-serving statements did “not

compel a contrary result.” Id. at 461–62.

      These two cases do not support Mays’ holding. At summary judgment the

moving party has an affirmative obligation to establish the absence of a genuine

issue of material fact and to show that it is entitled to judgment as a matter of law.

See Fed. R. Civ. P. 56. A single material fact genuinely in dispute makes it the

proper province of the jury, and not the court, to decide the outcome.            See

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986) (“[A]t the summary

judgment stage the judge’s function is not himself to weigh the evidence and


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determine the truth of the matter but to determine whether there is a genuine issue

for trial.”).

       Gibson involved a bench trial, and in that context we do not disturb a district

court’s factual findings unless the appellant accomplishes the herculean task of

demonstrating that “the record lacks substantial evidence to support [them],” such

“that our review of the entire evidence leaves us with the definite and firm

conviction that a mistake has been committed.” Ocmulgee Fields, Inc. v. C.I.R.,

613 F.3d 1360, 1364 (11th Cir. 2010). And reversing a jury verdict for insufficient

evidence, as the government attempted to do in Griffin, occurs only when “the

facts and inferences point overwhelmingly in favor of the moving party, such that

reasonable people could not arrive at a contrary verdict”—the polar opposite of the

standard that applies at summary judgment. See Miller v. Kenworth of Dothan,

Inc., 277 F.3d 1269, 1275 (11th Cir. 2002).

       Likewise, none of the binding cases cited by Griffin and Gibson arose in a

summary judgment posture. See Carson v. United States, 560 F.2d 693, 695 (5th

Cir. 1977) (reviewing factual findings by district court following bench trial);

Pinder v. United States, 330 F.2d 119, 121 (5th Cir. 1964) (reviewing jury verdict);

C.I.R. v. Smith, 285 F.2d 91, 93 (5th Cir. 1960) (reviewing tax court’s factual

findings following bench trial); Carter v. C.I.R., 257 F.2d 595, 596, 599 (5th Cir.

1958) (same); Anderson v. C.I.R., 250 F.2d 242, 246–47 (5th Cir. 1957) (same);


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Kite v. C.I.R., 217 F.2d 585, 588 (5th Cir. 1955) (same); Archer v. C.I.R., 227 F.2d

270, 272 (5th Cir. 1955) (same); Boyett v. C. I. R., 204 F.2d 205, 208 (5th Cir.

1953) (same); Carmack v. C.I.R., 183 F.2d 1, 2 (5th Cir. 1950) (same). See also

Quock Ting v. United States, 140 U.S. 417, 422 (1891) (reviewing factual findings

by district court). In short, these cases, with their more deferential standards of

review, do not provide the proper framework at summary judgment.

                                         II

      Heyman, a non-summary judgment case, is the only other precedent besides

Mays that supports entering summary judgment over a taxpayer’s unsubstantiated,

self-serving testimony. The taxpayers in Heyman paid wagering excise taxes and

sued for a refund.      See 497 F.2d at 122.        In response, the government

counterclaimed for the unpaid portion of the assessment against each taxpayer. See

id. At trial, one taxpayer claimed that the government overtaxed him because it

misunderstood the amount of wagers that he had actually placed, and offered

uncorroborated testimony contradicting the government’s assessment. See id. at

122–23. The district court directed a verdict in favor of the government despite

this testimony, and the taxpayer appealed. See id. at 122. The Fifth Circuit

affirmed the directed verdict, holding that the taxpayer’s uncorroborated testimony

was insufficient to meet his burden of showing that the government’s assessment

was incorrect. See id. at 122–23.


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      The standard for a directed verdict under Federal Rule of Civil Procedure

50(a)—now referred to as a judgment as a matter of law—mirrors the standard for

summary judgment. See Liberty Lobby, Inc., 477 U.S. at 250 (“[T]he trial judge

must direct a verdict if, under the governing law, there can be but one reasonable

conclusion as to the verdict.”). Heyman supports the outcome in Mays because,

though at a different stage in litigation, Heyman effectively held that “reasonable

minds could [not] differ” as to whether uncorroborated, self-serving statements

could overcome the presumption of correctness due to the government’s

assessment. Id. at 250–51.

      But Heyman, a case which cited no authority whatsoever for its ruling, was

wrongly decided. As explained above, none of the cases cited by Mays, nor any of

those cases’ antecedents, hold that self-serving statements made by a taxpayer with

personal knowledge cannot create a jury question as to the correctness of the

government’s assessment. All they say is that a reasonable factfinder—be it the

jury, the district court, or the tax court—may properly disregard uncorroborated,

self-serving statements as suspect. This is a far cry from the conclusion in Heyman

that no reasonable factfinder could decide differently.

                                         III

      Mays should be overruled. Though the evidentiary weight of self-serving

testimony may warrant discounting by the factfinder at trial, that logic has no place


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at summary judgment, where “the judge’s function is not . . . to weigh the

evidence.” Id. at 249. And it makes no difference that this is a tax case. As the

Sixth Circuit previously noted, albeit in an unpublished decision, there is no

authority for the proposition that the ordinary summary judgment standard does not

apply to tax cases. See Lewis v. United States, 336 F. App’x 535, 538 (6th Cir.

2009).

      More problematically, Mays controverts Rule 56. Rule 56(a) authorizes

summary judgment only when “there is no genuine dispute as to any material fact”

and Rule 56(c), in turn, allows a nonmoving party to genuinely dispute a material

fact through an affidavit. That affidavit must be “made on personal knowledge, set

out facts that would be admissible in evidence, and show that the affiant or

declarant is competent to testify on the matters stated.” Fed. R. Civ. P. 56(c).

      Nothing in the Federal Rules of Civil Procedure prohibits a Rule 56 affidavit

from being self-serving. Indeed, as the Seventh Circuit wisely observed, “most

affidavits submitted [in response to summary judgment] are self-serving.” Payne

v. Pauley, 337 F.3d 767, 772 (7th Cir. 2003). Yet it is not the self-serving nature

of the affidavits that often renders them ineffective against summary judgment, but

some other deficiency under Rule 56(c). See id.

      By requiring that taxpayers corroborate otherwise admissible affidavits to

dispute a material fact, such as the tax liability owed or, as here, payments made,


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Mays imposes an additional burden on nonmoving parties that Rule 56(c), by its

own terms, does not. This is precisely the sort of court-imposed, heightened

standard the Supreme Court has admonished as an improper amendment of the

Federal Rules of Civil Procedure. See Leatherman v. Tarrant Cty. Narcotics

Intelligence & Coordination Unit, 507 U.S. 163, 168–69 (1993) (reversing the

Fifth Circuit for imposing a “heightened pleading standard” for municipal liability

cases not found in Federal Rules of Civil Procedure 8 and 9). See also Adinolfe v.

United Techs. Corp., 768 F.3d 1161, 1168–69 (11th Cir. 2014).

                                        IV

        Mays was wrongly decided, as it constituted an unwarranted and

unsupported deviation from Rule 56. We should convene en banc and overrule

Mays.




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