Peter J. Bresson - Page 25

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          under section 6901 and is using that section rather than State law          
          to assert a claim against petitioner as transferee. (In this                
          regard, we disagree with the dissent's assertion that respondent's          
          claim against petitioner is not created under Federal law, but              
          rather under California's UFTA. See Dissenting op. p. 33.)                  
          Therefore, petitioner's reliance on Vellalos is misplaced.10                
               Further, the Court of Appeals for the Ninth Circuit has not            
          affirmatively approved of the District Court's exception in                 
          Vellalos to the general rule of United States v. Summerlin, 310             
          U.S. 414 (1940), with respect to limitations periods in transferee          
          liability cases.11  United States v. Bacon, supra.  Accordingly, we         
          are not bound to follow any such exception.  See Golsen v.                  
          Commissioner, 54 T.C. 742 (1970), affd. 445 F.2d 985 (10th Cir.             


               10   The dissent's reliance on Custer v. McCutcheon, 283               
          U.S. 514 (1931), is similarly misplaced.  Dissenting op. p. 34.             
          Like the situation in United States v. Vellalos, 780 F. Supp. 705           
          (D. Haw. 1992), in Custer the United States pursued its remedies            
          under State law rather than under Federal law.  Therefore, the              
          situation in Custer is distinguishable from the situation herein.           
          Moreover, it should be noted that Custer was decided several                
          years before United States v. Summerlin, 310 U.S. 414 (1940).               
               11   The Court of Appeals for the Ninth Circuit has created            
          an exception to the general rule of United States v. Summerlin,             
          supra, "[such] that a state statute which provides a time                   
          limitation as an element of a cause of action or as a condition             
          precedent to liability applies to suits by the United States even           
          if there is an otherwise applicable federal statute of                      
          limitations."  United States v. California, 655 F.2d 914, 918               
          (9th Cir. 1980) (citing United States v. Hartford Accident &                
          Indem. Co., 460 F.2d 17, 19 (9th Cir. 1972)).  The Court of                 
          Appeals for the Ninth Circuit, however, has never applied this              
          exception in transferee liability cases.                                    




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