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[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 16-10914
Non-Argument Calendar
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D.C. Docket No. 1:15-cv-20884-UU
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
versus
ESTELLE STEIN,
Defendant-Appellant.
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Appeal from the United States District Court
for the Southern District of Florida
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(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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