- 40 - It is true that we are not bound to follow United States v. Vellalos, supra. The majority, however, attempts to distinguish it by noting that, in Vellalos, the Government was "unable to invoke section 6901 because it missed the limitations period prescribed by subsection (c). Therefore, it relied on State foreclosure proceedings as a means for collection." Majority op. p. 24. The majority explains that it is not clear whether the District Court in Vellalos would have reached its same conclusion had the Government proceeded timely under section 6901, which is the case here. I disagree. The District Court in Vellalos was explicit in holding that The Tenth Amendment to the United States Constitution provides: 3(...continued) whether, in substance, a temporal limitation should be treated as a temporally limited right. See, e.g., Fairbanks-Morse & Co. v. Alaska Palladium Co., 32 F.2d 233, 234 (9th Cir. 1929) (quoting Partee v. St. Louis & S.F.R. Co., 204 F. 970, 972 (8th Cir. 1913)): A statute which in itself creates a new liability, gives an action to enforce it unknown to the common law, and fixes the time within which that action may be commenced, is not a statute of limitations. It is a statute of creation, and the commencement of the action within the time it fixes is an indispensable condition of the liability and of the action which it permits. Such a statute is an offer of an action on condition that it be commenced within the specified time. If the offer is not accepted in the only way in which it can be accepted, by the commencement of the action within the specified time, the action and the right of action no longer exist, and the defendant is exempt from liability.Page: Previous 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 Next
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