             Case: 18-14625    Date Filed: 04/23/2019   Page: 1 of 11


                                                            [DO NOT PUBLISH]



               IN THE UNITED STATES COURT OF APPEALS

                        FOR THE ELEVENTH CIRCUIT
                          ________________________

                                No. 18-14625
                            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
                         ________________________

                                 (April 23, 2019)

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

PER CURIAM:

      This appeal is the second occasion we have reviewed whether Estelle Stein’s

affidavit constituted substantial evidence that could defeat summary judgment in
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an action to reduce federal income tax assessments to judgment. In Stein’s first

appeal, we initially affirmed on the ground her affidavit failed to create a material

factual dispute about the validity of the assessments because, under Mays v. United

States, 763 F.2d 1295, 1297 (11th Cir. 1985), her “general and self-serving

assertions” failed to rebut the presumption of correctness given the assessments,

United States v. Stein, 840 F.3d 1355, 1357 (11th Cir. 2016), but later we granted

Stein’s petition for rehearing en banc, overruled Mays to the extent it outlawed

self-serving affidavits, United States v. Stein, 881 F.3d 853, 856–59 (11th Cir.

2018), and remanded the case to the district court, United States v. Stein, 889 F.3d

1200, 1202 (11th Cir. 2018). In this second appeal, Stein argues that her affidavit is

specific, relevant, and detailed enough to preclude summary judgment and that the

district court on remand violated Federal Rule of Civil Procedure 56 and her right

to due process under the Fifth Amendment. We affirm.

                                I. BACKGROUND

      The history of this case is well-documented in our earlier published

opinions. We describe only the facts pertinent to the issues in this appeal.

      The government moved for summary judgment in its action to reduce to

judgment assessments against Stein on five federal tax returns that she filed late.

The government assessed Stein penalties for the late filings and late payments of

her income taxes for 1996, 1999, and 2000, and penalties and interest for her


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failure to pay, late filing, and late payment of her income taxes for 2001 and 2002.

The government submitted copies of Stein’s federal tax returns, transcripts of her

tax accounts for 1996 and 1999 through 2002, and an affidavit from Officer

Michael Brewer of the Internal Revenue Service to establish that Stein had

outstanding tax assessments.

      Stein opposed summary judgment and submitted an affidavit as evidence

that the assessments were erroneous. Stein averred that the Internal Revenue

Service had acknowledged having misapplied her tax payment for 1996 to tax year

1979 and that she had paid the taxes due and a late penalty for each of her tax

returns. The relevant paragraphs of her affidavit stated as follows:

      8. For 1996, this tax return was filed on November 15, 2004. The IRS
      had no record of receiving any payment and is claiming that full
      amount of the tax is due, along with interest and penalties.

      9. Subsequently, the IRS admitted to having received my check, but
      we later learned that it was misapplied to 1979, a closed and paid
      year.

      10. For the year 1999, I filed the return as surviving spouse on
      February 11, 2005. This return showed an amount due of $33,612. I
      paid $35,226, which included the late penalty. The IRS has a record of
      that payment.

      11. For the year 2000, I filed my return as surviving spouse on
      January 11, 2005. The amount due on the return was $4,127. I paid
      $4,349.00, which amount included the late penalty. The IRS has a
      record of having received that payment.

      12. For the year 2001, I filed my return, as surviving spouse, on
      March 10, 2005. The amount on the return shows $15,998 due.
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      Although I recall paying the tax on that return, including a late penalty
      consistent with the other returns that I filed, the IRS does not have a
      record of receiving such payment.

      13. For the year 2002, I filed my return on March 10, 2005, as
      surviving spouse. The amount of tax shown on the return was
      $52,342. Although I recall writing a check for this amount, plus, late
      penalties, the IRS has no record of receiving this amount.

      ...
      17. The only record I could find, by sheer coincidence, was a check
      stub dated November 2004, for the exact amount of the tax due for
      1996, which, apparently, the check previously attached to said stub
      was mailed with the 1996 tax return, similar to each of the tax returns
      in question.

      18. I showed this tax stub to Mr. Michael Brewer, Revenue Office[r]
      with the IRS. After [he] did some research, he then confirmed that the
      IRS had, in fact, received the check for the 1996 tax year. . . ([In] [t]he
      handwritten notes . . . he agreed to correctly apply this missing
      payment to the 1996 tax year and calculated and credited accrued
      interest to 2015.)

      ...

      21. Notwithstanding the IRS’ objective in pursuing this claim to
      foreclose on my home, it is my unwavering contention that I paid the
      taxes due, including late filing penalties, at such time as I filed the
      returns for each of the tax years in question.

      On remand, the district court ordered the government to “file a new motion

for summary judgment” that addressed “ONLY . . . [whether her] self-serving

affidavit create[s] a genuine issue of material fact about [her] tax liability” and

Stein to “address ONLY the same question.” The district court based its order on

our decision “[e]n banc, . . . [that] overruled Mays, . . . [our] conclu[sion] that ‘a


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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 corroborated,’” and our statement “that ‘a self-serving and/or

uncorroborated affidavit will not always preclude summary judgment . . . .”

(Alterations adopted.) The district court also mentioned that we had “declined to

decide whether ‘substantive federal tax law’ require[d] corroboration of a

taxpayer’s affidavit.” The district court prohibited the parties from “engag[ing] in

further discovery, . . . supplement[ing] the record, or otherwise . . . mak[ing] new

arguments which they could have made when [the government] moved for

summary judgment the first time.”

      The government moved for summary judgment on the ground that Stein’s

affidavit failed to create a material factual dispute that she had paid her tax debts.

The government argued that, to rebut the presumption of correctness of its

assessment, Stein had to present documentary evidence that the Service received

her tax payments. The government also argued that Stein’s “general rather than

specific” allegations failed to create a genuine factual dispute that she had paid her

tax debts.

      The government attached to its motion current transcripts of Stein’s accounts

for tax years 1996 and 1999 through 2002 and an affidavit from Revenue Officer

Brewer stating that he had revised the assessment against Stein for tax year 1996


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and that he had updated Stein’s assessments for tax years 1999 through 2002. The

transcripts reflected that, for tax year 1996, Stein paid income taxes of $548 yet

owed a late-filing penalty of $123.30, a late-payment penalty of $137, and accrued

interest of $486.72, and that, for tax year 1999, she paid income taxes of $33,612

and an estimated penalty of $1,614 yet owed a late-filing penalty of $7,562.70, a

late-payment penalty of $8,403, and accrued interest of $52,734.23. The transcripts

also reflected that, for tax year 2000, Stein paid income taxes of $4,127 and an

estimated penalty of $222 yet owed a late-filing penalty of $928.57, a late-payment

penalty of $949.46, and accrued interest of $1,178.46. Additionally, the transcripts

reflected that Stein reported, but failed to pay, income taxes and estimated

penalties of $16,631 for tax year 2001 and of $52,342 for tax year 2002.

      Stein opposed summary judgment. She argued that, with “Mays overruled,

there is absolutely no justification under substantive federal tax law or otherwise

. . . [that] required . . . corroborat[ion]” of her averments that she had paid her taxes

and that her affidavit “create[d] a genuine issue of material fact concerning [her]

payment of her tax liability.” In a footnote, Stein complained that the government

had “file[d] a new affidavit” and had made a “new argument” that her affidavit was

“insufficient since it fails to assert that her payment was ‘delivered’” in

“violat[ion] [of] the Court’s July 2, 2018 Order.” Stein argued that, “[i]f

supplemental affidavits were permitted, then certainly [she] could clarify her


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testimony in opposition to the Government’s newly filed Motion for Summary

Judgment,” and she “request[ed] permission to file a supplemental affidavit.” Stein

also argued that she defeated summary judgment even “if the Court considers this

new argument without . . . [her] having an opportunity to supplement her affidavit

or file an additional affidavit” because she “attested that she mailed her check for

payment together with the filing of each of her tax returns” and she was entitled to

“a presumption of receipt of properly mailed documents . . . .”

      The district court granted summary judgment in favor of the government.

The district court ruled that “a taxpayer needs to show that they paid the taxes

assessed” and that “the IRS actually received the funds in question” to rebut the

presumption of correctness given an assessment. The district court determined that

“Stein’s affidavit [was] insufficient to create [a] genuine dispute of material fact”

because it was “speculative; based on nothing more than ‘the best of her

recollection.’” The district court ruled that summary judgment was appropriate

because Stein “offered nothing else to counter the government’s evidence” to

“show that the government was paid and that the assessment . . . is incorrect.”

                          II. STANDARD OF REVIEW

      We review de novo a summary judgment. United States v. White, 466 F.3d

1241, 1244 (11th Cir. 2006). Summary judgment is appropriate if “there is no




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genuine dispute as to any material fact and the movant is entitled to judgment as a

matter of law.” Fed. R. Civ. P. 56(a).

                                 III. DISCUSSION

      Stein had to satisfy a well-established standard to defeat the motion of the

government for summary judgment. Because the evidence submitted by the

government created a presumption that its tax assessments were correct, Stein had

to prove that the assessments were erroneous. See White, 466 F.3d at 1248–49. She

had to produce “significant probative evidence,” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 249 (1986), to create a “genuine issue as to any material fact” that

she had paid her tax debts, id. at 250. Her evidence had to be more than “merely

colorable,” id. at 249; it had to be of sufficient quality and weight “that a

reasonable jury could return a verdict” in her favor, id. at 248.

      The affidavit that Stein submitted as evidence that the assessments were

erroneous had to satisfy certain criteria. Her affidavit had to “made on personal

knowledge.” Fed. R. Civ. P. 56(c)(4). The affidavit had to contain statements that

Stein knew, as opposed to subjectively believed, that “a certain fact exist[ed] . . .

[to] creat[e] a genuine issue of fact about the existence of that certain fact.” Pace v.

Capobianco, 283 F.3d 1275, 1278–79 (11th Cir. 2002); see Ellis v. England, 432

F.3d 1321, 1326 (11th Cir. 2005). Stein’s affidavit also had to “set out facts that

would be admissible in evidence.” Fed. R. Civ. P. 56(c)(4); see Gossett v. Du-Ra-


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Kel Corp., 569 F.2d 869, 872 (5th Cir. 1978) (stating that “opposing affidavits

[must] set[] forth specific facts to show why there [was] an issue for trial”). The

affidavit had to consist of facts, not “conclusory allegations . . . [, which] have no

probative value.” Evers v. Gen. Motors Corp., 770 F.2d 984, 986 (11th Cir. 1985).

      Stein’s affidavit failed to create an issue of fact about the validity of the

assessments. Several of Stein’s averments did not conform to Rule 56(c)(4).

Stein’s averments that she had an “unwavering contention that” and believed “to

the best of [her] recollection” that she had paid all her taxes and late penalties

conveyed her subjective belief, not personal knowledge, that she had satisfied her

tax debts. See Jameson v. Jameson, 176 F.2d 58, 60 (D.C. Cir. 1949) (“Belief, no

matter how sincere, is not equivalent to knowledge.”) (cited in Pace, 283 F.3d at

1279). Her averment that she recalled paying her income tax and penalty for tax

year 2001 had no probative value because she failed to support it with any facts

about the time, place, or form of her payment. See Evers, 770 F.2d at 986. And

Stein remaining averments did not dispute her tax debts. With respect to the 1996

tax year, Stein’s averments that she filed her tax return “on November 15, 2004,”

and that her “check stub . . . [reflected payment] for the exact amount of the tax

due” confirmed, rather than contested, that she still owed accrued interest and late-

filing and late-payment penalties for that tax year. Stein’s averment that she paid

her income taxes and estimated penalties for tax years 1999 and 2000 did not


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address the validity of the related assessments for accrued interest and penalties

imposed for the late filing and the late payment of her taxes. As to tax year 2002,

Stein recalled “writing a check” for income taxes and penalties, yet she did not

state that she delivered the check, so no dispute existed that she owed assessments

for failing to pay, for paying and filing late, and for accrued interest.

      Stein produced no substantial competent evidence to defeat summary

judgment. Viewed in the light most favorable to Stein, her affidavit provided “a

scintilla of evidence,” which is not enough to survive summary judgment. See

Liberty Lobby, 477 U.S. at 252. And Stein failed to submit any other evidence to

support her assertion that the tax assessment was erroneous. See Fed. R. Civ. P.

56(c)(1). Without the existence of a “genuine dispute as to any material fact . . .

[the government was] entitled to judgment as a matter of law.” See id. R. 56(a).

      Stein argues that the district court on remand violated Federal Rule of Civil

Procedure 56 and her right to due process under the Fifth Amendment, but we

disagree. Stein argues that she was improperly “limited [in] what arguments [she]

could assert,” but the district court appropriately limited the parties’ arguments

based on our instruction to “determin[e] the impact of Ms. Stein’s affidavit” on the

motion of the government for summary judgment, Stein, 881 F.3d at 859. Stein

argues that the district court violated Rule 56 by prohibiting her from filing new

evidence in opposition to summary judgment, but Rule 56 does not address the


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supplementation of the record on remand. Furthermore, the admission of evidence

is a matter of discretion, and Stein fails to explain why it was inappropriate for the

district court to refuse to admit new evidence. See Cambridge Univ. Press v.

Albert, 906 F.3d 1290, 1302 (11th Cir. 2018) (“The question whether to reopen the

record on remand is ‘left to the sound discretion of the trial court.’ Jones &

Laughlin Steel Corp. v. Pfeifer, 462 U.S. 523, 551, 103 S. Ct. 2541, 76 L.Ed.2d

768 (1983).”). And we find unpersuasive Stein’s conclusory argument that the

district court violated her right to due process by denying her an opportunity to file

a new affidavit. Stein fails to state what facts she would have included in the

affidavit or how she was prejudiced by the inability to file a new affidavit.

                                IV. CONCLUSION

      We AFFIRM the summary judgment in favor of the government.




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