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    December 20, 2018 Practice Points

    Caution: Even a Self-Serving Affidavit May Preclude Summary Judgment

    In a recent case, a court found that even a self-serving and uncorroborated affidavit may create an issue of material fact and preclude summary judgment

    by Michael R. Lied

    In United States v. Stein, 881 F.3d 853 (11th Cir. 2018) the appeals court held that an affidavit satisfying Rule 56 of the Federal Rules of Civil Procedure may create an issue of material fact and preclude summary judgment even if it is self-serving and uncorroborated.

    The case concerned IRS assessments, which amount to an IRS determination that a taxpayer owes the federal government a certain amount of unpaid taxes, and is entitled to a legal presumption of correctness. In 2015, the government sued Estelle Stein for outstanding tax assessments, late penalties, and interest owed. In response to the government’s later summary judgment motion, Stein submitted an affidavit of her own stating that, to the best of her recollection, she had paid the taxes and penalties owed for the years in question.

    Regarding Stein’s affidavit, the district court ruled that although Stein maintained that payments had been made, she “did not produce any evidence documenting said payments,” and therefore did not satisfy her burden to overcome the presumption of correctness given to the government’s assessments. As a result, there was “no genuine dispute as to any material fact,” and the government was entitled to judgment as a matter of law.

    A panel of the court of appeals affirmed, ruling that Stein’s “affidavit failed to create a genuine factual dispute about the validity of the [government’s] assessments” because, under Mays v. United States, 763 F.2d 1295 (11th Cir. 1985) her “general and self-serving assertions ... failed to rebut the presumption established by the assessments.” The appeals court took the case en banc to determine whether Mays should be overruled.

    In fact, the court of appeals overruled Mays to the extent it held or suggested 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. While an affidavit cannot be conclusory, nothing in Rule 56 (or, for that matter, in the Federal Rules of Civil Procedure) prohibits an affidavit from being self- serving.

    Nor does Rule 56 require that an otherwise admissible affidavit be corroborated by independent evidence. Rule 56(c) states only that an 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.”

    A non-conclusory affidavit which complies with Rule 56 can create a genuine dispute concerning an issue of material fact, even if it is self-serving and/or uncorroborated. The full appeals court remanded the case to the panel for consideration of Stein’s appeal.

    The takeway? At least in the 11th Circuit, the fact that an affidavit may contain self-serving or uncorroborated statements does not prevent the affiant from raising a genuine issue of material fact.

    Michael R. Lied is with Howard & Howard Attorneys PLLC, Peoria, IL.

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