Rosenthal Law Group is pleased to announce that it has prevailed before the 11th Circuit Court of Appeals in an
En Banc proceeding in the case of
United States of America v. Estelle Stein. In an
En Banc opinion issued January 31, 2018, the 11th Circuit Court of Appeals overruled the case of
Mays v United States of America which had previously held that a taxpayer cannot overcome the government’s
presumption of correctness in a summary judgment proceeding merely by
filing a self-serving uncorroborated affidavit in opposition.
The 11th Circuit Court of Appeals held in Stein that Mays was incorrectly decided and that:
Mays to the extent it holds or suggests that self-serving and uncorroborated
statements in a taxpayer’s affidavit cannot create an issue of material
fact with respect to the correctness of the government’s assessments.
Nothing in Rule 56 prohibits an otherwise admissible affidavit from being
self- serving. And if there is any corroboration requirement for an affidavit,
it must come from a source other than Rule 56.
The 11th Circuit held that the rules of summary judgment apply the same to all
litigants and all cases, and tax cases do not receive special treatment.
The Court held that “[w]e see no basis for imposing a corroboration
gloss on Rule 56 … and reaffirm that “even in the absence
of collaborative evidence, a plaintiff’s own testimony may be sufficient
to withstand summary judgment.” The Court went on to hold that “[i]f
corroboration is needed, then that requirement must come from a source
other than Rule 56, such as the substantive law that governs the parties’
dispute or the Federal Rules of Evidence.
The impact of this ruling will be far reaching in this Circuit and, perhaps,
others. Other than a single panel opinion in the Sixth Circuit Court of
Stein case is believed to be the only Federal Circuit Court opinion which has
held that a taxpayer can defeat summary judgment by filing an otherwise
admissible self-serving uncorroborated affidavit.
The appeal was handled by Alex Rosenthal and Amanda Jones. Alex Rosenthal
argued the case before the
En Banc panel in Atlanta, GA on October 10, 2017.
Rosenthal Law Group handles all types of commercial litigation and appeals
and is available to discuss your matter with you. Please contact us at