Eleventh Circuit Deny Intervenors Motion, Rallying Around Judge Jill Pryor’s Refusal to Recuse Despite Her Bias and a Tardy Financial Disclosure Report Still Pending

PER CURIAM

[DO NOT PUBLISH] Non-Argument Calendar D.C. Docket No. 1:15-cv-20884-UU Appeal from the United States District Court for the Southern District of Florida Before WILLIAM PRYOR,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  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  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.

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  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  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  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  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-  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  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  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.

Curtis Clarence Pett, Mary Apostolakos Hervey, Bridget Maria Rowan, U.S. Department of Justice, Chief Appellate Section Tax Division, Washington, DC, for Plaintiff-Appellee.Alex P. Rosenthal, Rosenthal Law Group, Weston, FL, Clifford Marshall Stein, Clifford M. Stein, Attorney at Law, Miami Beach, FL, for Defendant-Appellant.

Before ED CARNES, Chief Judge, TJOFLAT, HULL, MARCUS, WILSON, WILLIAM PRYOR, MARTIN, JORDAN, ROSENBAUM, and JULIE CARNES, Circuit Judges.

BY THE COURT:

A petition for rehearing en banc having been filed, a member of this Court in active service having requested a poll on whether this case should be reheard en banc, and a majority of the judges of this Court in active service having voted in favor of granting rehearing en banc, it is ORDERED that this case will be reheard en banc. The panel’s opinion is VACATED.

PER CURIAM.

Curtis Clarence Pett, Mary Apostolakos Hervey, Bridget Maria Rowan, U.S. Department of Justice, Chief Appellate Section Tax Division, Washington, DC, for Plaintiff–Appellee.

Alex P. Rosenthal, Rosenthal Law Group, Weston, FL, Clifford Marshall Stein, Clifford M. Stein, Attorney at Law, Miami Beach, FL, for Defendant–Appellant.

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 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (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, 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 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.

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 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, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) (“[A]t the summary judgment stage the judge’s function is not himself to weigh the evidence and 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); 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, 11 S.Ct. 851, 35 L.Ed. 501 (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.

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, 106 S.Ct. 2505 (“[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, 106 S.Ct. 2505.

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 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 Fed.Appx. 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, 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, 113 S.Ct. 1160, 122 L.Ed.2d 517 (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.