government filed an assessment claim against mr stein approximately ten years after an assessment and shortly thereafter moved for summary judgment in their motion the attached affidavit of the revenue agent along with their transcript and in their motion stated that the government was intitled under law to a presumption of correctness and even before any evidence was filed in the case relying on mays versus united states stated that mrs stein could not defeat summary judgment and overcome the presumption of correctness in a summary judgment proceeding merely by filing her own affidavit unless she also filed corroborating evidence to support her statements can i ask you a quick question i'm a little confused about exactly how we got here because i didn't see that the district court sided maze i didn't see that the government in its panel brief defending the summary judgment cited made how is it that mays becomes the animating principle of this entire proceeding well the government cited mays in their motion the district court judge cited the principle of maze in her decision although she didn't cite the case specifically when she said  you the ruling here is that the it self serving affidavit without corroborating evidence is in succumb the presumption of correctness that's may's so she said it without citing the case even it was cited by the government i guess the question i have is that is i read the district court opinion it seems not to be articulating a principle that will apply for all times and all purposes but just to say in this case this affidavit wasn't she didn't say the affidavit was insufficient as affidavit she said it was insufficient because there was not corroborating evidence to support the affidavit which nowhere in rule fifty six does that principle exist in fact this court many of the judges and court have authored opinions which says an affidavi alone self serving albeit self serving is sufficient to oppose a summary judgment even when the party filing has the burden to prove their case but for some reason the district court invited to do so because of the concept the principle of presumption of correctness and corroborating evidence necessary to support that affidavit ruled that this affidavit self serving in nature was insufficient to defeat the summary judgment of the government but so is it your position that a self serving uncorroborated affidavit always suffices summary judgment provided it's admissible probative to material fact in the case and i say that not because i think it's the case because andersen first liberty lobby says the case  because price says self serving affidavit from this court is sufficient in fact sometimes litigants don't have records their cases can partly based on their verbal statements in there and there are this course in newsome in read in adam let's assume that the bank records were electronic as they are today so you don't get them from the bank and in the mail every month a bundle of joy canceled checks what you do is you get a print out of the transactions at the bank conducted on your account so that's in my view would be the best evidence that the i r s would pay for that i would agree if that record exists so her her testimony is a substitute for the for the best evidence mean the bank's payment her testimony was the best and only available evidence on the issue since the records didn't understand but that's to me that's hearsay and all you have is her testimony which establishes the bank record which that is that the bank paid your honor as to the issue of hearsay let me get to that her testimony that she tried to get the records from the bank but the bank had no records to give or she wasn't offering that the truth was often that she attempted to get the records from i mean i understand all that the so but point my point is the best of the payment is the bank's records and that's what her testimony supported was a substitute for it was a substitute because the records did not excessive whether it had the probative value to it if it's the only evidence that exists it's has probative value as to say there were at records in the bank records showed no payment that her and probable righted affidavit would be enough to defeat that i'm sorry but let's assume that that somebody the government had objected hearsay grounds and somebody had gone to wells fargo and wells fargo said we've looked at records we have our records we show no payment of this chat you don't go so far as to say well even if that so her affidavit still enough to create  i haven't gone this far because that's not the record i'm ok the point i'm so so so on that issue it would be complicated but if i point to newsome and read from this court that the a fine it's his own medical records that said one thing and then he a fine testified contradictory to his own medical records and this court said while that is suspicious it creates a question of fact here is to what how do you do you go that far you do go to the bank says we've looked at perjury would be filed in the taxpayer now taxpayer would file an affidavit that's not truthful under penalties of perjury in fact in none of the cases cited by the government is the issue and the question of fact and corroborating evidence a question of tax government says there transcripts say nonpayment taxpayer says payment the corroborate an issue that comes up in all these cases is whether or not the application of the code by the i r s was correct or not and what  the question of payment interestingly is unique to this case as to whether it creates a question of fact and what corroboration is necessary do you make a distinction between a tax refund case and what you taxpayers taking in it what type a record keeping is necessary to prove that claim on an assessment case by the government there is no similar code provision which talks about a record keeping that being said i know the i r s has tried to draw a distinction in this case to say oh mase doesn't go that far the principle that discord stated is the on bank issue that what mazes it doesn't go that far it's really a political only in a refund case which to me is disingenuous since two things in this case a non refund case and assessment case the i r s cited to the court maze as the authority are exceptions where someone may not have the record for example let me give you an example in time your answer you might say i maybe that's going to be enough it could be yes and let me explain why i believe that to be the case let's assume on a monday when the taxpayer ready to file their lawsuit on a refund case or defending a summary judgment in assessment case they have all the records are ready to sign the affidavit hurricane arma does a storm surge and blows all the records out to sea so on monday they were that they were going to win the case and on wednesday they now lose the case because the records are gone as a matter of law the ira cites as a matter of law they said in this case we lose because we don't have a record and cases sometimes don't have records now the jury could say i believe  know your honor if you ask me how much i paid my electric bill last week i couldn't tell you the precise amount but if i looked at the check i could now if you i know i paid my taxes ten years ago and i know i wrote the check i don't know how much the check was for it's not an  one paragraph says to the best of my recollection we've cited in our brief the case law that says there's a distinct difference between to the best of my recollection and upon information and belief to the best of my recollection the court's if you consistently held that's the same as saying this is my recollection this is what i did  also says it is my unwavering contention that i paid the taxes that doesn't help your client at all right so let's put it in there for well just to remind the court to look at the value for one of the reasons that james judges but so the judge does have the right if i affidavit is in cop it if she testified verbatim trial my my suggestion is the judge would have discretion he has discretion to admit or exclude evidence to decline to sustain a government objection to the testimony and if he has that discretion that trial why not on summary judgment i think the case what are the you have the same discretion what my answer to that is twofold first of all the if an affidavit is competent hearsay and competent not of personal knowledge etc then a judge can exclude the affidavit in this case has no personal knowledge of the bank paying the debt she she her knowledge is that she wrote the check  she she said on each of the tax returns that issued she paid the tax the tax and the penalties with the tax returns for each of the subject act but the second quote to get to your other point and not to be technical here because but this is the issue at no point in the proceedings did the government seek to strike the affidavit is inadmissible or incompetent about whether the judge abused her discretion and not taking the evidence into account that's what he did it just didn't take it into it the judge did not say that the evidence and i know it's a but that's what he did sometimes judges don't express what they do and the perfect language ok so the issue though is that we if you if you try to read between the lines on the affidavit you can just look at specifically what the judge ruled judge ruled this is science at this this in this but that alone without corroborating evidence is insufficient to overcome the presumption that of of correctness and under this courting garner you know if you have to show payment payment as an affirmative defense of the rules and she pled effectively pled payment said she paid and just so we're clear i'm talking about procedurally she effectively pled you didn't have payment as an affirmative defense but the court in effect created it as an affirmative defense her affidavit she denied that the money that was allege was oh why because i hate it she denied it because she had paid it he denies it oh because she paid it then you don't have to also there's no question that she for her c p a filled out the tax returns and they went to look she never filed them but some of them she her husband she put in her affidavit that prior to one thousand to two thousand and four when her husband died he was responsible she learned in two thousand and four that the tax returns for those years weren't filed hired a c p a and based on what he prepared she submitted the tax returns along with her payment and the issue here is on summary judgment whether it's the best evidence because the bank had a record which in this case there is no record that you have to believe what she's saying to be the truth at trial it may be that it's shown to be not credible but you can't create this obligation in a rule fifty six but if this evidence your position has to be if this evidence were presented at trial the judge would have to deny a motion for judgment as a matter of law correct i'm sorry if this if it if the evidence presented at trial mirrored her affidavit your could upon hearing the credibility and hearing to tell what i ask you ok judgment of the matter over law is different from making credibility to determine if it's the close of the case the evidence mirrored the affidavit to a word your position is the judge couldn't grant judgment as a matter of law yes that mitt but but the issue here in our  can i can i just very i know your time but just to circle back to judge julie carnes question just need to get the squared away in my own head you said that we were testing the limits of maize and you said that you know she asked you if it was different a refund case and you said no the government is trying to make that argument that's disingenuous i thought that in your panel brief in footnote four you said this would be totally different if it were a refund case because it's well settled under maze that the taxpayer has a double applying it to our case certainly doesn't make sense under mase and the government itself is attempted in district court after district court in this court in other cases has said it has a widespread outlook asian beyond tax refund cases where in a tax refund case there is a statutory burden for taxpayers to have records there is no equivalent statutory requirement in a assessment situation so in but and i guess in short an answer to judge carn question if this were a refund case under the position you articulate in your panel brief there's a well settled rule that the taxpayer must be able to substantiate its claim with something other than self serving uncorroborated oral testimony citing  mays if this were a refund case totally different the maze rule applies across the board if mays were is good law but then but then we shift over to the quite question is why is may's good law at all in the first place which was the on bank issue here what just agreed with me earlier that the motion for judgment as a matter of law standard mirrors rule fifty six you can't have it both ways and say now don't worry about rule fifty six because you can cut these cases  flat out wrong is it not in other words if you have an affidavit of a litigant self serving but based on personal knowledge admissible and probative on a material issue you can't disregard the affidavit  right i don't i don't agree with that no your honor if you think you think that in again worth i'm not i'm not trying to ask you about a tax case that's the next step but as a pua rule fifty six matter you think that a self serving uncorroborated affidavit of a litigant made on personal knowledge probative to a material issue otherwise admissible can be disregarded it depends it depends on what on what the case is and what the nature of the case is ok i'll give you i'll give you a very simple a crash case distant crossroads where there are no red light cameras no witnesses and two cars crash and one driver says she took the red and the other driver says he took the red and the skid marks are not probative that the police can't figure out who's right and who's wrong there were no witnesses and one driver says her fault one driver says his fault in a district court disregard either of those affidavi uncorroborated though they are so that case would be similar to the ones that we cite at pages twenty and twenty one of our brief in this on block proceeding where this court has held that in cases of motive and intent of personal experience  little bit of a tax case a little bit different than this let's say that a taxpayer like mistimed gets assessed and decides you know damn i r s shouldn't have to be paying all this money so i want to pay it but i'm going to pay it in a funny way to make a point and she drives wheelbarrows of quarters to the i r s delivers them to the i r s right and the i r s refuses to give her a receipt because they're miffed at what she's done i did the wheel barrels full of quarters for her full tax s s the i r s is when i given you a receipt but they take the wheel barrels ok an assessment claim against her she says on this date i went to the i r s i delivered my wheelbarrows i asked for a receipt they refused to give me a receipt i paid my taxes she says that in an how is that if that affidavit is as you said based on personal experience i went i took my wheelbarrow full of money i delivered it and the i r s refused to give me a record which i asked for to prove my payment but i was there and i gave it does not meet the standard at the supreme court establishing andersen versus liberty lobby and that i think is the centerpiece here in liberty lobby the court held that  party it's not sufficient just to present evidence that is colorable or that is the point the point here counsel is you otherwise have an affidavit that is sufficient in so far as one it is sworn to the  having personal knowledge three the personal knowledge itself is specifically detailed for the affiant is otherwise competent how would a district judge have the authority to refuse to so much as consider the affidavit on summary judgment simply because you declare that the affidavit is self serving what is there about the self serving nature of an affidavit that it renders it inadmissible if all of these other requirements are met your honor i think that the focus on the term self insufficient and i don't want to have the say i don't want to confuse the label conclusory with the phrase self serving all self serving means is it serves the interest of  party correct to even in an affidavit and virtually anything you ever present in a court of law as a party is self serving in the sense that it's designed and intended to assist you in moving the point by pondering through and some other way what is the basis for saying a district judge on summary judgment has the power to simply refuse to consider an chocolate pointed out the best evidence would come from the bank the question is what you can offer by way of a surrogate in place of it if that evidence is not ninety six i remember writing the check i don't have to check i can't get it from the bank but i specifically paid that sum of money on that date to the i in atlanta georgia is that not something the court is obliged at least to consider in determining whether or not there is a material issue of fact in dispute that may be but that's not what this cases tenth ultimate paragraph of the opinion said that in refund suits uncorroborated on cross rated oral testimony is not sufficient but the holding in mays i think is absolutely correct and should not be disturbed on appeal because what happened in mays was the government held in that case is that that's not good enough now we don't even know if that that summary was was given to the court under oath like i said well let me give you that ok let me give you that just for the sake of this argument but i guess what i want to know under those circumstances isn't it wrong to apply may is outside of the refund caught haven't you just admitted that that it would well as was pointed out i think what we didn't even cite mays in our brief to the paddle and  that to their office in atlanta and there were no bank records that the court would be obliged to consider that on summary judgment to determine whether or not there's a material issue of fact in dispute can he considerate is he a blige to consider it or must he started completely aben issue facially simply because i don't have any corroboration other than my word less you tell me it's inadmissible if it isn't competent evidence and it's not admissible that's one thing would it be it miss a bull evidence for me to say i paid it i wrote the check here's the amount here's the day i don't have to check i have no bank records would that be competent probative evidence whether in the form of an affidavit or under oath in a court of law at a trial the answer the question is yes it is competent yes it is admissible but it may not be enough to defeat summary judgment based on andersen versus liberty lobby the court said in that case that just because evidence is colorable just because it's competent just because it's admissible does not me the central office she paid it in our us agent there she put that in an affidavit is that enough well yeah i mean i think that's similar to judge jordan's hypothetical i think it's better but i mean she actually remembers going down there as a painful personal experience but you in truth i mean this that's more a more extreme situation i don't know that it ever happened would happen but maybe that's enough but again it's not what happened in this case well but you say self interest has nothing to do with it why wouldn't that be and i mean suppose suppose she passes away before before we get to the summary judgment stuff and an agent down at the local office says i remember coming in here we get those so seldom and i asked my supervisor what to do with it and we decide to send it to central office and we did does that defeat summary judgment for the i r s well there of course you have corroborating evidence i think from one why is his personal corroborating of what he says but her personal recollection doesn't corroborate what she said well corroborating evidence i always understood means that there is some other evidence that supports what you're saying but yeah but there's no other evidence that supports what he's saying other than want he say just like there's no other evidence that supports what she's saying other than what she's saying you keep saying insisting that self serving has nothing to do with it not i that's not my point s office on a given date at a given time in the day she says and i gave him the money and he said thank you accept it on behalf of your united states government we'll put it to good use i'll send it to the central office does it matter whether it's her affidavit are she's passed and it's the local i r s agents office directors test it's at the david then we have the i r s evidence that the tax was all we know no record of it you got the local gasana has sent it to the central office i don't know what those culprits did and his testimony as he got it from a he processed it but there's not a trace of record now if his testimony is enough to avoid summary judgment why isn't her testimony in an affidavit enough to avoid summary judgment that's the taxpayer in your hypothetical yeah ok again in that case it may be that's a closer call from what we have  oceans that's your way of saying i'd rather not address that hypothetical but what i'm asking you is i think you have to because it it would be helpful to me if you did because it test your position that self serving is not the poison pill you're not going to i mean you're not going can vents me at least i'm speaking for me that self serving makes the difference because as judge joe flat says they're all self serving  and we've agreed that the focus on self serving should be out of the case ok with what is her testimony is good is the agent of the local office who didn't make a record of it but remembers it vividly that that is a closer case and twelve and thirteen paragraph twelve as you recall paying a tax with the return for two thousand and one paragraph thirteen she recalls writing a check for the amount for two thousand and two now recalling writing a is not required the bank record it's not required and other evidence of the contents of the record is admissible of the contents of the bank record as the other evidence if if if it's lost so if she is incompetent she has no personal knowledge of any kind about what happened at the bank zero  put it in the mail period that's all she can say but of course with the rest respected two thousand and two tax she doesn't say that much she also says she recalls writing the check and that is not evidence of payment but your argument has to be that what  payment is not putting something in the mail payment is having the bank actually on the chair is that that's uniform commercial code that a payment is not made until it's delivered and honored by the bank the back to just just let's questioning the fact you're talking about a decade all you can say is i recall let me turn you to something else paragraph eighteen wasn't there a situation in this case where ms stein without proof of payment a check stub which is not evidence of payment that just means she may have written out a check because she could have just written out a check stub and tossed out the check showed it to the i r s and lo and behold the i r s had misapplied a payment there's back and forth between the iris and the taxpayer and this pace attack taxpayer came out with an explanation the iris went back and looked and lo and behold it had a record of that payment it has no records of the other payments how do we know that's correct how do we know that the i r s position is correct when the i r s says we have no records of payment we never received payment how do we know that that statement by the i r s is not self serving uncorroborated and representative is saying we don't have records of having received it they don't submit any records to show that they didn't get it her being so uncorroborated why isn't the i r s in the same position as mis single tax case well i think it originates from supreme court decisions for the one nine hundred thirty s ok well still what is the i r s affidavit suffice to when summary judgment forget to feed it how does the i r s get to win in this case of mis the record is a lack of record even if even if this was not a case where the iris entitled to a presumption of correctness in any debtor creditor dispute all that happens is the creditor has to put in the evidence of the debt and then the debtor s to come forward something more than i paid this to clark i have just one question when you look at what the district court did hear on summary judge did the district court refused to consider the stein affidavit at all or did he look at it and say on its face it's insufficient because of x y and z to replot the government's show did he refused to consider it at all well i don't know there's any really i should clear indication in the opinion as to whether or not i asked the question because the way i read it is the district court refused to consider the affidavit at all because there was nothing extrinsic that corroborated its content and that she read the law there was a requirement to put in something corroborating just i'm not looking at is that what happened again we don't know it may be just because the district judge saw these statements i recall writing a check i recall paying this was insufficient in another self because the statements that i recall means that she doesn't know  sworn well considering the affidavit is a different question of whether or not it's sufficient to be saluted and i'm asking whether a district judge can refuse to consider it i think that the district court has to be no the district prevail it is your position that this that this will also apply on a tax refund that will have every tom dick and harry saying you know i paid you two hundred thousand dollars i'll have the records your honor they think that i'd like a a refund suit you have to pay the tax and fault and i think that if an affidavit like this is sufficient in this case to get to a jury then i don't see why it wouldn't be in a refund case because the question is i paid t five years i didn't believe it so i haven't thrown any away based on it but out fault that came with some return you know under back go to answer the question is the treasury regulations under section sixty zero one of the into revenue code tax payers are required to keep permanent books of accounting records relating to their and company dioxins and they're required to maintain to retain them for as long as that material to the administration of the tax loss i thought the law was as long as you could be audited and the audit  two starting with a final inquiry first presses on records which require talk about what type of records taxpayers are supposed to keep for whatever period of time is income and deductions the iris itself has a regulated teach you must better not throw them away all you have left if your testimony and it is no substitute for the for the record right so in this particular case if we go to and i understand your honor's point on the best evidence ruled the point on this is if you have somebody who could replicate the bank record she can't replicate the bank record right she can only say what she did with the checked and she said the same thing for the payment that she didn't have a record in the bank's record or a checks front and back of a check but it turned out that the government was wrong in its transcript as the fact that she didn't pay that which she didn't have a record to prove because she could prove it in testimony in a trial with the issue of her credibility has to prove that the bank pa tech the issue and that is an issue of proving what i was going to get to house how does her test body that i put it in the mail prove the bank prove the bank paid your own or can you tell me that if we were a right front and center she has to prove that the bank paid the checked all she can say if i put it in the mail where it went who knows that's approve the bank paid it and she doesn't have anything other than her own judgment as a matter of law if you are in your question the court can consider any other evidence well i'm sure there is no other evidence does record other than her testimony as i put it in the mail right and wh check that she put in the mail she could not go through with it and she could not prove that you're argument is that the judgment was a matter of law would be denied my belief is that the argument is that mays requires corroborating evidence that true she put it in the mail the question becomes whether the bank paid part of the argument is that our test about of that she put it in the mail is proof that the bank paid it is that right second part of anderson says that in all reasonable inferences must be drawn in her favor and in evidence to the bank by the tax return the tax return i'm referring to which is that she found the check stub was exactly one of the tax returns that the i r s sued and said she didn't pay ok and you've won on that note but the point is yes you have wait but the issue is  let's move on to what you have one known ok and ask you questions about that ok now assume that that didn't happen or a set off of the start ninety six they don't worry about to the i r s from time to time desperate people desperate measures sometimes things get lost in the mail app and all looks out thought the the point of judge joe french question was you to prove payment she doesn't have her record she doesn't have the bank records how can she prove payment and my answer to the question is again that summary judgment if we assume what she says to be true and draw all reasonable inferences in her favor and summary judgment we have to draw the conclusion that she paid it and that it was received and they did and that was a payment the question becomes a different standard at trial you don't have to believe or a trial you can weigh the evidence including the stack of evidence the existence or nonexistence of receipts and summary judgment though she says it you have to believe it but but let me ask you this because both of you and your opponent are both citing anderson but you know what he's saying is anderson says that if the evidence is merely colorable and not significantly probative summary judgment can be granted how our district how does that you know what's the buzz phrase significantly probative what does that mean and how to issue of material fact not just a factual issue is there a genuine issue and i take the significant probative significantly probative gloss to be a gloss on the word genuine sure that there is some some room for sufficiency judgment at summary judgment i agree right yes so i mean the district court doesn't have to consider any old thing that shoved under his nose percent agree and so how is it the district court goes about operationalizing that significantly probative  rule to distinguish between this case and i pathetically ok sort of gets to judge whole question about like what's what's good or bad about this particular affidavit was it on one side of a lot of the other the government says she didn't pay she said she did pay that is the material the if you draw the inference when she says she paid you're then dissecting what she means by did she pay and the truth is again going back to just common sense for me if you ask me did i pay my tax return ten years ago i would say yes i paid it i don't have it anymore my bank doesn't have the record and if i said oh and i didn't recall whether i saw it on my bank statement that that doesn't mean i didn't pay it and so the issue of evidence at that going to prove or disprove things at trial you don't account and what she did in the process she went through to pay now it is probative to the material issue of whether it was or was not paid in this case and if you draw the inference is in her favor in summary judgment then that's the issue that has been presented here