[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

________________________

No. 14-10288

Non-Argument Calendar

_______________________

Agency No. 26552-10

PHILIP LONG, 

 Petitioner-Appellant,

 versus

COMMISSIONER OF IRS, 

 Respondent-Appellee.

________________________

Petition for Review of a Decision of the

United States Tax Court

________________________

(November 20, 2014)

Before TJOFLAT, WILSON, and JORDAN, Circuit Judges.

PER CURIAM: 

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Philip Long appeals the United States Tax Court’s final order and decision 

on his petition for redetermination of deficiency brought under 26 U.S.C. § 

6213(a). Long argues that the Tax Court erred by concluding that the $5.75 

million Long received from the assignment of his position as plaintiff in a lawsuit 

constituted taxable ordinary income, rather than long term capital gains. Long also 

argues that the Tax Court erred by concluding that Long’s $600,000 payment to 

Steelervest, Inc. (Steelervest) did not qualify as a deductible expense. Long further 

argues that the Tax Court erred by concluding that Long presented insufficient 

evidence of unaccounted legal fees.

I.

In October 2007, Long filed a federal income tax return for 2006, reporting a 

taxable income of $0. In September 2010, the Internal Revenue Service (IRS) 

served Long with a notice of deficiency, which indicated that Long had a taxable 

income of $4,145,423 and had incurred $1,430,743 of tax liability in 2006. Long 

filed a pro se petition in the Tax Court seeking a redetermination of his deficiency 

on the grounds that he properly reported his taxable income and that the IRS made 

several errors in calculating his cost of goods and gross receipts. The IRS’s answer 

denied any error in the notice of deficiency. 

In October 2011, Long and the IRS executed a stipulation of facts and 

exhibits, as required by the Tax Court, which the IRS supplemented three times

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thereafter. According to the stipulated facts, from 1994 to 2006, Long, as sole 

proprietor, owned and operated Las Olas Tower Company, Inc. (LOTC), which 

was created to design and build a luxury high-rise condominium called the Las 

Olas Tower on property owned by the Las Olas Riverside Hotel (LORH). LOTC 

never filed any corporate income tax returns and did not have a valid employer 

identification number. Instead, Long reported LOTC’s income on his Schedule C 

of his individual tax return.

From 1997 to 2003, Long also owned Alhambra Brothers, Inc. (Alhambra), 

which was created to build a different luxury condominium in Ft. Lauderdale, 

Florida. To facilitate the building of the condominium, Alhambra formed 

Alhambra Joint Ventures (AJV) with Steelervest, a company owned by Henry J. 

Langsenkamp, III.

In 1995, Steelervest entered into a contract to loan funds to LOTC for the 

development of Las Olas Tower. In November 2001, Steelervest purchased 

Long’s interest in AJV, and, as part of the deal (the AJV Agreement), Steelervest 

agreed to forgive the loans previously issued to LOTC. As part of the same deal, 

Long agreed to pay Steelervest $600,000 in the event that Long sold his interest in 

the Las Olas Tower project, or twenty percent of the net profit resulting from the 

development of the Law Olas Tower project.

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In 2002, Long, negotiating on behalf of LOTC, entered into an agreement 

with LORH (the Riverside Agreement) whereby LOTC agreed to buy land owned 

by LORH for $8,282,800, with a set closing date of December 31, 2004. LORH 

subsequently terminated the contract unilaterally and, on March 26, 2004, LOTC 

filed suit in Florida state court against LORH for specific performance of the 

contract and other damages. LOTC won at trial, and on November 21, 2005, the 

state court entered judgment in favor of LOTC, and ordered LORH to honor the 

Riverside Agreement and proceed with the sale of the land to LOTC within 326 

days from the date of entry of the final judgment. LORH appealed the judgment. 

In August 2006, during the appeals process for the Riverside Agreement 

litigation, Steelervest and Long renegotiated the terms of the AJV Agreement, and, 

in a new agreement (the Amended AJV Agreement), Long agreed to pay 

Steelervest fifty percent of the first $1.75 million, up to a maximum of $875,000, 

of monies received by Long as a result of the Riverside Agreement litigation. On 

September 13, 2006, Long entered into an agreement with Louis Ferris, Jr. (the 

Assignment Agreement), whereby Long sold his position as plaintiff in the 

Riverside Agreement lawsuit to Ferris for $5,750,000. While the Amended AJV 

Agreement arguably entitled Steelervest to $875,000, Steelervest agreed to receive 

$600,000 and release all rights to pursue collection under the Amended AJV 

Agreement.

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At the April 11, 2012 Tax Court trial, Long began his testimony by arguing 

that the $600,000 payment to Steelervest was a deductible business expense, not a 

non-deductible loan repayment. Long insisted that the $600,000 paid to 

Steelervest could not have been a debt repayment, because all debts were 

extinguished by the AJV Agreement. 

Long also testified that he began the Las Olas Tower project in 1995 when 

he had the idea to build a luxury condominium in a prime real estate market. Long

claimed he intended to coordinate the development of the Las Olas Tower project, 

and sought funding from his business partner and friend, Langsenkamp. Long

explained that he spent thirteen years working on the Las Olas Tower project, and, 

in the end, he was able to sell his right to build the project. 

Next, Long proffered a letter from his attorneys as evidence of $238,343.71 

in unaccounted legal fees, but the Tax Court refused to admit the letter as 

inadmissible hearsay. The Tax Court then afforded Long the opportunity to 

continue the trial so that Long could find the appropriate documentation regarding 

his legal fees and present witnesses to properly authenticate those documents. 

Long stated, however, that he was going to “give up” and “concede” the issue of 

unreported legal fees because he had no way of getting admissible evidence before 

the Tax Court in a timely fashion. 

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On cross-examination, Long testified that he was the developer of the Las 

Olas Tower project, and his role was to design the property with an architect, 

obtain local government approval for the project, and merchandise the property. 

Long provided promotional material to potential clients, worked with clients to 

execute contracts, and received deposits for approximately twenty percent of Las 

Olas Tower’s sixty to ninety proposed condominium units. Long worked full-time 

as the developer for the project. 

After Long’s testimony, the IRS called John McCrory, Steelervest’s and 

Langsenkamp’s attorney, who testified that AJV and the Ft. Lauderdale 

condominium project were losing enterprises, and Langsenkamp’s only hope of 

making money was to have the loans Steelervest gave to LOTC repaid out of 

profits from the Las Olas Tower project. The purpose of the AJV Agreement was 

to cancel the notes issued to LOTC, and transfer Long’s indebtedness to profits 

from the Las Olas Tower project. Essentially, the $600,000 was a substituted 

obligation for the cancelled promissory notes. 

At the end of the trial, Long stated that his sole objection to the IRS’s 

calculation of his 2006 tax liability was that his $600,000 payment to Steelervest 

was a deductible business expense, not a loan repayment. Long also reiterated that 

he agreed to give up on the additional legal fees. The IRS then noted its objection 

to Long’s characterization of his 2006 income as capital gains. 

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Long stated in his post-trial brief that he should not have withdrawn his 

claim regarding unaccounted legal fees, and argued that the IRS improperly 

omitted $238,544 of deductible legal expenses from his 2006 tax return. 

Additionally, the $600,000 payment to Steelervest did not constitute a loan 

repayment because the controlling documents indicated that the AJV Agreement 

eliminated all of Long’s debt. Long also asserted that his income from the 

Assignment Agreement constituted the sale of an asset, and, therefore, his tax 

return should be completed using the long term capital gains method. 

The IRS stated in its post-trial brief that the $600,000 payment to Steelervest 

must have been a debt repayment because Steelervest was not a participant in a 

joint venture with LOTC. The IRS also argued that the $5,750,000 received by 

Long from the Assignment Agreement constituted ordinary income, not capital 

gains. Specifically, Long received $5,750,000 in lieu of future ordinary income 

payments, and, therefore, that money should be counted as ordinary income under 

the “substitution for ordinary income doctrine.” See Comm’r v. P.G. Lake, Inc., 

356 U.S. 260, 260 S. Ct. 691 (1958). Additionally, Long was not entitled to an 

increased legal fee deduction because, at trial, he presented no evidence 

demonstrating his entitlement to an increased deduction, and, regardless, he 

affirmatively abandoned the issue. 

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The Tax Court rejected Long’s arguments and found him liable for a tax 

deficiency of $1,430,743. First, the Tax Court determined that Long’s concession 

regarding the deductibility of additional legal fees amounted to a binding 

stipulation that he was not entitled to an increased deduction. Moreover, even if 

Long had not conceded the issue, he did not present sufficient evidence at trial 

demonstrating his entitlement to an enhanced legal fee deduction. Second, based 

on factors enumerated in previous published Tax Court decisions, the Tax Court 

concluded that the AJV Agreement did not create a joint venture between 

Steelervest and LOTC, and, therefore, the entire $5.75 million payment Long 

received for his postion in the Riverside Agreement litigation constituted nondeductible, taxable income attributable to Long, including the $600,000 that Long 

subsequently paid to Steelervest. Finally, the Tax Court, treating LORH’s land as 

the putative capital asset, found that Long intended to sell the land to a developer

and concluded that the applicability of the capital gains statute “depend[ed] on 

whether Long intended to sell the land to customers in the ordinary course of his 

business.” The Tax Court determined that, while Long only intended to sell the 

land for the Las Olas Tower project, and not the individual condominium units 

themselves, the $5.75 million payment for Long’s position in the lawsuit

nevertheless constituted ordinary income because Long intended to sell the land to 

customers in the ordinary course of his business. 

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II.

We review decisions of the Tax Court “in the same manner and to the same 

extent as decisions of the district courts in civil actions tried without a jury.” 26 

U.S.C. § 7482(a)(1). We review the Tax Court’s legal conclusions and 

interpretations of the tax code de novo and its findings of facts for clear error. 

Ocmulgee Fields, Inc. v. Comm’r, 613 F.3d 1360, 1364 (11th Cir. 2010). 

Additionally, we may affirm on any ground that finds support in the record. 

Thomas v. Cooper Lighting, Inc., 506 F.3d 1361, 1364 (11th Cir. 2007) (per 

curiam).

III.

Long argues that the $5.75 million he received from the Assignment 

Agreement should be assessed as a long term capital gain rather than as ordinary 

taxable income. Long notes that he only had an option to purchase LORH’s land 

and the only asset he ever had in the Las Olas Tower project was the Riverside 

Agreement. 

In response, the IRS argues that Long’s proceeds from the Assignment 

Agreement were not a capital gain, but rather a lump sum substitution for the 

ordinary income he would have earned from developing the Las Olas Tower 

project. Thus, under the “substitute for ordinary income doctrine,” the $5.75 

million lump sum payment was taxable as ordinary income. Additionally, in light 

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of this analysis, the Tax Court’s discussion of factors to determine Long’s primary 

purpose for holding the property was irrelevant. The IRS also argues that the 

$5.75 million, which constitutes Long’s proceeds from the sale of his judgment, is 

a short-term gain, because Long sold the judgment to Ferris on September 13, 

2006, less than a year after the court entered judgment on November 21, 2005. 

Long did not file a reply brief.

IV.

Income representing proceeds from the sale or exchange of a capital asset 

that a taxpayer holds for over a year is considered a capital gain and is taxed at a 

favorable rate. Womack v. Comm’r, 510 F.3d 1295, 1298 (11th Cir. 2007). Other 

income, or “ordinary income,” is taxed at a higher rate. Id. “[T]he term ‘capital 

asset’ means property held by the taxpayer (whether or not connected with his 

trade or business), but does not include . . . stock in trade of the taxpayer or other 

property of a kind which would properly be included in the inventory of the 

taxpayer if on hand at the close of the taxable year, or property held by the 

taxpayer primarily for sale to customers in the ordinary course of his trade or 

business.” 26 U.S.C. § 1221(a)(1). In certain circumstances, contract rights may 

be capital assets. See Pounds v. United States, 372 F.2d 342, 346 (5th Cir. 1967). 

This Court has observed that “the statutory definition of ‘capital asset’ has 

never been read as broadly as the statutory language might seem to permit, because 

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such a reading would encompass some things Congress did not intend to be taxed 

as capital gains.” Womack, 510 F.3d at 1299 (second alteration in original) 

(internal quotation marks omitted). “[T]he term ‘capital asset’ is to be construed 

narrowly in accordance with the purpose of Congress to afford capital-gains 

treatment only in situations typically involving the realization of appreciation in 

value accrued over a substantial period of time. Id.

The Tax Court erred by misconstruing the “property” subject to capital gains 

analysis under § 1221. The Tax Court analyzed the capital gains issue as if the 

land subject to the Riverside Agreement was the “property” that Long disposed of 

for in return for $5.75 million. The record makes clear, however, that Long never 

actually owned the land, and, instead, sold a judgment giving the exclusive right to 

purchase LORH’s land pursuant to the terms of the Riverside Agreement. In other 

words, Long did not sell the land itself, but rather his right to purchase the land, 

which is a distinct contractual right that may be a capital asset. See Pounds, 372 

F.2d at 346. The Tax Court erred by ignoring this distinction. 

This distinction is material because the “property” subject to the capital 

gains analysis was really Long’s exclusive right to purchase the property pursuant 

to the Florida court judgment. The dispositive inquiry is not “whether Long 

intended to sell the land to customers in the ordinary course of his business,” but 

whether Long held the exclusive right to purchase the property “primarily for sale 

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to customers in the ordinary course of his trade or business.” See 1221(a)(1). 

There is no evidence that Long entered into the Riverside Agreement with the 

intent to assign his contractual rights in the ordinary course of business, nor is there 

evidence that, in the ordinary course of his business, Long obtained the Florida 

court judgment for the purpose of assigning his position as plaintiff to a third party. 

Rather, the record makes clear that Long always intended to fulfill the terms of the 

Riverside Agreement and develop the Las Olas Tower project himself. 

The IRS asserts two alternate grounds for affirming the Tax Court’s 

decision. First, the IRS incorrectly asserts that Long’s proceeds from the 

Assignment Agreement constitute short-term capital gains. If the asset subject to 

capital gains treatment was an assignment of litigation rights, then Long acquired 

the asset when he filed suit in March of 2004, not when he obtained the judgment. 

Additionally, the real asset at issue was Long’s exclusive right to purchase the 

land, which he obtained pursuant to his execution of the Riverside Agreement in 

2002, well over the one-year period required for long-term capital gains treatment. 

See Womack, 510 F.3d at 1298. 

Second, the IRS argues that Long’s proceeds from the Assignment 

Agreement were a lump sum substitute for his future ordinary income, and under 

the “substitute for ordinary income doctrine” the proceeds should be characterized 

as ordinary income. We cannot agree. 

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“[T]he substitute for ordinary income doctrine is the only recognized judicial 

limit to the broad terms of [§] 1221.” Tempel v. Comm’r, 136 T.C. 341, 347 

(2011) aff'd sub nom. Esgar Corp. v. Comm’r., 744 F.3d 648 (10th Cir. 2014). 

Therefore, “when determining whether property is a capital asset under [§] 1221, 

unless one of the eight exceptions or the substitute for ordinary income doctrine 

applies it is a capital asset.” Id. 

The substitute for ordinary income doctrine provides that when a party 

receives a lump sum payment that “essentially [is] a substitute for what would 

otherwise be received at a future time as ordinary income that lump sum payment 

is taxable as ordinary income as well.” Womack, 510 F.3d at 1299 (internal 

quotation marks omitted). The overall effect of the doctrine “has been to narrow 

what a mechanical application of [§] 1221 would otherwise cause to be treated as a 

capital asset.” Id. at 1300. 

In determining whether a lump sum payment serves as a substitute for 

ordinary income, we look to “the type and nature of the underlying right or 

property assigned or transferred.” United States v. Woolsey, 326 F.2d 287, 291 

(5th Cir. 1963).1

 A lump sum payment for a fixed amount of future earned income 

is taxed as ordinary income. See, e.g., Hort v. Comm’r, 313 U.S. 28, 30, 61 S. Ct. 

 

1 The Eleventh Circuit, sitting en banc, adopted as binding precedent all decisions 

rendered by the Fifth Circuit prior to close of business on October 1, 1981. See Bonner v. City of 

Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc). 

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757, 757–58 (1941) (building owner’s receipt of lump sum payment in exchange 

for cancelling a lease on his property constitutes ordinary income); Womack, 510 

F.3d at 1301 (lottery winner’s receipt of lump sum payment in exchange for right 

to future lottery winning disbursements constitutes ordinary income). 

It cannot be said that the profit Long received from selling the right to 

attempt to finish developing a large residential project that was far from complete

was a substitute for what he would have received had he completed the project 

himself. Long did not have a future right to income that he already earned. By 

selling his position in the litigation, Long effectively sold Ferris his right to finish 

the project and earn the income that Long had hoped to earn when he started the 

project years prior. Taxing the sale of a right to create—and thereby profit—at the

highest rate would discourage many transfers of property that are beneficial to 

economic development. 

Long possessed a “bundle of rights [that] reflected something more than an 

opportunity...to obtain periodic receipts of income.” Comm’r v. Ferrer, 304 F.2d 

125, 130–31 (2d Cir.1962) (internal quotation marks omitted). Long’s profit was

not “simply the amount [he] would have received eventually, discounted to present 

value.” Womack, 510 F.3d at 1301. Rather, Long’s rights in the LORH property 

represented the potential to earn income in the future based on the owner's actions 

in using it, not entitlement to the income merely by owning the property. See id. at 

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1302. We have already held that selling a right to earn future undetermined 

income, as opposed to selling a right to earned income, is a critical feature of a 

capital asset. United States v. Dresser Indus., Inc., 324 F.2d 56, 59 (5th Cir. 1963). 

The fact that the income earned from developing the project would otherwise be 

considered ordinary income is immaterial. Id. 

We hold that the profit from the $5.75 million Long received in the sale of 

his position in the Riverside Agreement lawsuit is more appropriately 

characterized as capital gains. The ruling of the Tax Court is reversed and 

remanded with instructions to determine Long’s new tax liability in accordance 

with this opinion. 

V.

Long next argues that the Tax Court erred by not treating his $600,000 

payment to Steelervest as a deductible “reduction of income.” Specifically, Long 

contends the $600,000 was not a non-deductible loan repayment, but rather a 

payment due as part of a stipulated profit participation agreement and, therefore, 

was a “reduction of income and a deductible expense.” 

In response, the IRS argues that the AJV Agreement and Amended AJV 

Agreement are debt instruments, and, as such, the $600,000 payment to Steelervest 

constituted a non-deductible payment of indebtedness. Moreover, the IRS argues 

that regardless of the characterization of the AJV Agreements, Long conceded that 

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all of LOTC’s income flowed through him, and Long failed to identify any 

provision of the tax code entitling him to deduct the $600,000. 

“When a taxpayer receives a loan, he incurs an obligation to repay that loan 

at some future date.” Comm’r v. Tufts, 461 U.S. 300, 307, 103 S. Ct. 1826, 1831 

(1983). “Because of this obligation, the loan proceeds do not qualify as income to 

the taxpayer.” Id. “When [the taxpayer] fulfills the obligation, the repayment of 

the loan likewise has no effect on his tax liability. Id.

Additionally, “deductions under the Internal Revenue Code are a matter of 

legislative grace and the taxpayer who claims the benefit must bear the burden of 

proof that he is entitled to the particular deduction.’ O’Neal v. United States, 258 

F.3d 1265, 1276 (11th Cir. 2001). As such, the taxpayer “must ‘clearly establish’

his entitlement to a particular deduction.” Anselmo v. Comm’r, 757 F.2d 1208, 

1211 n.2 (11th Cir. 1985).

Throughout the proceedings in the Tax Court, Long never made clear 

whether his argument was that (1) the $600,000 paid to Steelervest was its profit 

share of a joint venture with LOTC (meaning, of the $5.75 million Long received 

from the Assignment Agreement, only $5.15 million was his actual income), or (2) 

the entirety of the $5.75 million was Long’s income, but the $600,000 paid to 

Steelervest qualified as a deductible expense. Long concedes in his opening brief 

that he did not participate in a joint venture with Steelervest, and, therefore, the 

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entirety of the $5.75 million in proceeds from the Assignment Agreement was 

attributable to Long’s income. Accordingly, the issue on appeal is whether the 

$600,000 Long paid to Steelervest qualified as a deductible expense. 

Here, the Tax Court committed no error because Long did not meet his 

burden of clearly establishing his entitlement to deduct the $600,000 paid to 

Steelervest. See O’Neal, 258 F.3d at 1276; Anselmo, 757 F.2d at 1211 n.2. The 

record demonstrates that the nature and character of the Amended AJV Agreement 

was to renegotiate Long’s repayment terms with respect to his indebtedness to 

Steelervest. Accordingly, the $600,000 was a loan repayment that does not qualify 

as a deductible expense. See Tufts, 461 U.S. at 307, 103 S. Ct. at 1831. Moreover, 

regardless of the characterization of the Amended AJV Agreement, Long provides 

no statutory support for his contention that LOTC’s alleged “profit participation” 

with Steelervest constitutes a deductible expense. Accordingly, Long has not met 

his burden of clearly establishing his entitlement to a particular deduction, and the 

judgment of the Tax Court on this issue is affirmed. 

VI.

Finally, Long argues that the Tax Court erred by refusing to include over 

$200,000 in unreported legal fees in its assessment of his deficiency. He argues 

that a letter from his attorneys was sufficient to demonstrate the existence of the 

unreported legal fees. Moreover, Long argues he was tricked into abandoning his 

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claim by the Tax Court, and that counsel for the IRS behaved unethically by failing 

to disclose that the evidence offered by Long was hearsay. 

In response, the IRS argues that the Tax Court correctly determined that 

Long’s proffered evidence of additional legal fees was both inadmissible and 

insufficient to demonstrate his entitlement to a higher deduction. 

We have repeatedly held that we will not consider issues on appeal that a 

party expressly abandoned at trial. See, e.g., Midrash Sephardi, Inc. v. Town of 

Surfside, 366 F.3d 1214, 1222 n.8 (11th Cir. 2004). This Court reviews claims of 

judicial error in the lower courts, and if we were to regularly address questions that 

a lower court never had a chance to examine, it would not only waste court

resources, but “also deviate from the essential nature, purpose, and competence of 

an appellate court.” Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1331 

(11th Cir. 2004). 

The taxpayer carries the burden of demonstrating with some substantiality 

how much of a deductible expense was actually paid or incurred. Williams v. 

United States, 245 F.2d 559, 560 (5th Cir. 1957). It is a basic requirement that the 

petitioner present sufficient evidence that a deductible expense was, in fact, spent 

or incurred for the stated purpose. See id.

Tax Court proceedings are conducted in accordance with the Federal Rules 

of Evidence applicable in a trial without a jury. Comm’r v. Neal, 557 F.3d 1262, 

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1272 n.9 (11th Cir. 2009) (citing 26 U.S.C. § 7453). Hearsay is defined as a 

statement, other than one made by the declarant while testifying at the trial or 

hearing, offered in evidence to prove the truth of the matter asserted. Fed. R. Evid. 

801(c). Absent an exception, hearsay is not admissible. See Fed. R. Evid. 802. 

As an initial matter, Long’s explicit abandonment of this issue at trial would 

typically prevent appellate review because the Tax Court would not have made a 

final ruling. See Midrash Sephardi, Inc., 366 F.3d at 1222 n.8; Access Now, Inc., 

385 F.3d at 1331. However, Long re-raised the issue in his post-trial brief, and the 

Tax Court ultimately addressed the merits of Long’s argument in its final decision. 

Accordingly, this Court may review whether the Tax Court erred by concluding 

that Long did not present sufficient evidence of unaccounted legal fees. 

Additionally, the record contains no evidence of unethical behavior by the Tax 

Court or IRS counsel, and, regardless, we need not consider issues of alleged 

impropriety because Long raises them for the first time on appeal. See Access 

Now, Inc., 385 F.3d at 1331. 

Here, the Tax Court correctly concluded that Long’s evidence of 

unaccounted legal fees was insufficient. Long’s sole piece of evidence regarding 

the unaccounted legal fees, a letter from his attorneys indicating that certain fees 

were paid, constitutes inadmissible hearsay, because the writer of the letter did not 

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testify in court or otherwise authenticate the document.2 See Fed. R. Evid. 801(c), 

802. Accordingly, having presented no other evidence, Long did not present 

sufficient evidence of a deductible expense. See Williams, 245 F.2d at 560. 

Therefore, the judgment of the Tax Court on this issue is affirmed.

AFFIRMED in part, REVERSED in part, and remanded with instructions

for further proceedings. 

 

2 While the attorney’s letter may have been admissible as a business record under Fed. R.

Evid. 803(6), Long makes no such argument in his opening brief and, therefore, this Court need 

not consider the issue. See Holland v. Gee, 677 F.3d 1047, 1066 (11th Cir. 2012).

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