- 34 -
extinguish the right altogether.
C. Respondent’s Failure To Carry the Burden of Proof
The Government did not demonstrate that the transfer occurred
within 4 years of the date of the notice of transferee liability
against petitioner. Majority op. p. 18. Therefore, I conclude
that the Government has not sustained its burden of proving that
petitioner was liable as a transferee under California law.
IV. The Summerlin Issue
A. Quod Nullum Tempus Occurrit Regi
The majority rests its holding on the ancient rule of quod
nullum tempus occurrit regi--"that the sovereign is exempt from the
consequences of its laches, and from the operation of statutes of
limitations". See Guaranty Trust Co. v. United States, 304 U.S.
126, 132 (1938). The majority explains that the Supreme Court has
already addressed the distinction between statutes of limitations
and "non-claim" statutes in United States v. Summerlin, 310 U.S.
414 (1940). The majority applies Summerlin here to dispose of the
case on the theory that section 3439.09 amounts to a nonclaim
statute, and that is the equivalent of a statute of limitations.
The Supreme Court in Summerlin held that "if the statute * * *
undertakes to invalidate the claim of the United States, so that it
cannot be enforced at all, because not filed within * * * [the
statutory period], we think the statute in that sense transgressed
the limits of state power." Id. at 417.
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